A. Exceptions for ILL Copying
Making and sending copies of materials may be a crucial library function, but for some copyright owners it is an interference with potential sales of the work. Perhaps most controversial in this regard is the copying of journal articles. Articles may be the most commonly demanded work for copying to serve the research needs of users at other locations. Journal articles are also frequently marketed by a variety of means by publishers. As a result, publishers often criticize ILL services as direct interference with a major commercial market. If a library can rely on ILL to secure copies of articles, then the library does not need to purchase its own subscription to the journal. If a researcher can rely on the library to obtain a copy, then the researcher need not seek to buy a copy directly from the copyright owner or publisher. Moreover, as new technologies make the reproduction and delivery of materials cheaper and easier for libraries, so do these innovations make marketing of individual articles a realistic prospect for publishers. Nevertheless, ILL remains vital for meeting the service objectives of many libraries, and many works are still a long way from being reasonably available to purchase by individual users.
The ILL exceptions embody these tensions between library services and the interests of publishers. The Australian statute demonstrates the potential complexity of the matter. Section 50 of the Copyright Act addresses ILL as well as document supply. The library may make copies of articles and even whole works, but only after a search of the market and the filing of declarations by the librarian about the lack of availability of the work on the market. The statute adds a plethora of conditions defining market availability and stipulating exactly when a digital copy may be made. Comparable provisions appear in the statutes of New Zealand and Singapore. These statutes are a clear indication of the complex struggles that often underlie the provision of copies in the name of interlibrary lending.
The United States has enacted a different model. Under American law, the library making the copy must generally assure that the reproduction conforms to the requirements of the research exception. American copyright law allows libraries to make copies of articles or other short works, as well as entire works, under stated circumstances. The library receiving the copy is subject to the separate requirement that it does not receive copies “in such aggregate quantities as to substitute for a subscription to or purchase of such work.” Unlike in Australia, the library is not necessarily compelled to search the market for the work, but it does need to determine when it might have sufficient demand for copies, such that the library theoretically should own the work in question.
The U.S. statute does not set any standard for determining the “aggregate quantities”. In most cases, libraries are today left to make reasonable determinations about the limits of receiving copies. In 1979, shortly after enactment of the ILL provision, a governmental body, the Commission on New Technological Uses of Copyrighted Works (CONTU), issued a report with guidelines for libraries that receive copies of journal articles through ILL. In summary, those guidelines propose that libraries may receive in each calendar year not more than five copies of articles from the most recent five years of issues of any journal title. Once a library exceeds the limit of five copies, the suggestion is that the library should consider having its own subscription to that journal. Some libraries, in the alternative, pay a licensing fee to the publisher for the right to make additional copies. The CONTU guidelines have been widely adopted at American libraries, but they address only copies of articles from recent issues of journals. Left to debate since the late 1970s has been the scope of copying permitted of earlier articles or of books and other types of works.
A. Exceptions for ILL Copying
Making and sending copies of materials may be a crucial library function, but for some copyright owners it is an interference with potential sales of the work. Perhaps most controversial in this regard is the copying of journal articles. Articles may be the most commonly demanded work for copying to serve the research needs of users at other locations. Journal articles are also frequently marketed by a variety of means by publishers. As a result, publishers often criticize ILL services as direct interference with a major commercial market. If a library can rely on ILL to secure copies of articles, then the library does not need to purchase its own subscription to the journal. If a researcher can rely on the library to obtain a copy, then the researcher need not seek to buy a copy directly from the copyright owner or publisher. Moreover, as new technologies make the reproduction and delivery of materials cheaper and easier for libraries, so do these innovations make marketing of individual articles a realistic prospect for publishers. Nevertheless, ILL remains vital for meeting the service objectives of many libraries, and many works are still a long way from being reasonably available to purchase by individual users.
The ILL exceptions embody these tensions between library services and the interests of publishers. The Australian statute demonstrates the potential complexity of the matter. Section 50 of the Copyright Act addresses ILL as well as document supply. The library may make copies of articles and even whole works, but only after a search of the market and the filing of declarations by the librarian about the lack of availability of the work on the market. The statute adds a plethora of conditions defining market availability and stipulating exactly when a digital copy may be made. Comparable provisions appear in the statutes of New Zealand and Singapore. These statutes are a clear indication of the complex struggles that often underlie the provision of copies in the name of interlibrary lending.
The United States has enacted a different model. Under American law, the library making the copy must generally assure that the reproduction conforms to the requirements of the research exception. American copyright law allows libraries to make copies of articles or other short works, as well as entire works, under stated circumstances. The library receiving the copy is subject to the separate requirement that it does not receive copies “in such aggregate quantities as to substitute for a subscription to or purchase of such work.” Unlike in Australia, the library is not necessarily compelled to search the market for the work, but it does need to determine when it might have sufficient demand for copies, such that the library theoretically should own the work in question.
The U.S. statute does not set any standard for determining the “aggregate quantities”. In most cases, libraries are today left to make reasonable determinations about the limits of receiving copies. In 1979, shortly after enactment of the ILL provision, a governmental body, the Commission on New Technological Uses of Copyrighted Works (CONTU), issued a report with guidelines for libraries that receive copies of journal articles through ILL. In summary, those guidelines propose that libraries may receive in each calendar year not more than five copies of articles from the most recent five years of issues of any journal title. Once a library exceeds the limit of five copies, the suggestion is that the library should consider having its own subscription to that journal. Some libraries, in the alternative, pay a licensing fee to the publisher for the right to make additional copies. The CONTU guidelines have been widely adopted at American libraries, but they address only copies of articles from recent issues of journals. Left to debate since the late 1970s has been the scope of copying permitted of earlier articles or of books and other types of works.
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