Status of the CONTU Guidelines Many libraries rely on the 1978 guidelines issued by the Commission on New Technological Uses of Copyrighted Works (CONTU)—specifically, the “Rule of Five”2—to provide a framework for complying with Section 108(g)(2), which could bar libraries from using ILL arrangements as a “substitute for a subscription to or purchase of” copyrighted works. While CONTU and the Rule of Five can be helpful for libraries in establishing procedures for ILL, they are only guidelines and do not have the full force and effect of the law. Indeed, the Conference Report on the 1976 Copyright Act, which endorsed the guidelines, also acknowledged that they “are not intended to be limiting or determinative in themselves or with respect to other situations, and that they deal with an evolving situation that will undoubtedly require their continuous reevaluation and adjustment.”3 In short, CONTU is not the law, and Congress and the CONTU drafters agreed that the law allows more than CONTU contemplates. Responsibilities of US Libraries Libraries that make and supply copies in an ILL arrangement generally look for confirmation from any requesting library that it is acting within the limits of Section 108. The fulfilling library as a practical matter relies on the good faith of the requesting library in order to assure that its services are within the scope of the law. In a typical ILL transaction, a requesting library seeks a copy from a fulfilling library of a work that is in the fulfilling library’s collection. The requesting library is in the best position to know whether making the copy satisfies a statutory exception (e.g., whether it is a “substitute for a subscription or purchase”), yet the fulfilling library may have possible liability exposure (because it makes and distributes copies). Therefore, while the fulfilling library can watch for red flags that indicate bad faith, it must typically rely on requesting libraries’ representations that all ILL requests are legitimate. Because the Berne Convention and other international copyright agreements do not specify any standards for ILL, nations have considerable discretion about the terms of allowable reproduction and distribution, or even whether to allow ILL activities at all. As a result, the law on such matters varies greatly from one country to the next. In the context of a request from a foreign library, a US library that fulfills the request is still making the copy in the US and therefore is subject to US law. The fulfilling library accordingly may still want assurances from foreign partners that can help the US library determine whether the services may run afoul RLI 275 16 White Paper: US Law and International Interlibrary Loan ( C O N T I N U E D ) JUNE 2011 RESEARCH LIBRARY ISSUES: A QUARTERLY REPORT FROM ARL, CNI, AND SPARC