of US law. While foreign institutions may not be bound by the same legal rules as
US libraries, there are many ways a fulfilling library can be assured that its foreign
partners’ requests are legitimate. Sources of assurance include shared library
practices as well as formal commitments and representations from foreign partners.
The proper scope and function of ILL are embedded in well-established
practices that have been openly integrated into professional standards and have
been widely known to and acknowledged by authors, publishers, and others for
years. Grounded in practical concerns as well as respect for copyright, these
practices support the use of ILL ordinarily only for materials the requesting
library would not otherwise license or purchase. ILL is typically an inefficient
substitute for purchase or subscription where the latter is truly justified, and to
the extent that it prevents a library from acquiring relevant materials for its own
collection, abuse of ILL undermines library mission. Quite simply, a high
volume of ILL requests for a particular item is a reliable signal of scholarly
interest that should lead a research library to acquire the item for its own
collection. For these reasons, academic and research libraries that follow best
practices will not engage in abuse of an ILL arrangement, regardless of
variations in technical legal regimes.
Fulfilling libraries also obtain assurances from international partners by
formal representation. For example, most ILL request forms contain a box that
requesting libraries check to indicate that their request is in compliance with
US copyright law or CONTU guidelines. US libraries have no reason to believe
foreign partners misrepresent themselves on these forms, which accompany
each ILL request. If there is any indication of confusion, it may be helpful to
explain to foreign ILL partners that US law bars domestic libraries from
reproduction and lending that violates Section 108 or is not within fair use, with
a clear statement that these two provisions may apply. It may also help to make
the representations more explicit. For example, request forms could be changed
to include verification similar to the following:
This request is in compliance with US Copyright Law, including
either Section 107 (fair use) or Section 108(g)(2), which provides
that requests will not be made “in such aggregate quantities as to
substitute for a subscription to or purchase of such work.” The
requesting library represents that it complies with US law and
that receiving the copy will not violate the copyright, importa-
tion, or other laws of the requesting library’s country.
RLI 275
17
White Paper: US Law and International Interlibrary Loan
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C O N T I N U E D
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JUNE 2011 RESEARCH LIBRARY ISSUES: A QUARTERLY REPORT FROM ARL, CNI, AND SPARC