Copyright Basics
The Copyright Law is designed to stimulate the advancement of knowledge by creating a balance between the creators and the users of copyrighted works. It tries to give creators enough protection of their work to insure that they can profit and to allow enough exemptions to those exclusive rights so that others are able to use the work to create new works.
The sections of the Law that most directly relate to copying and interlibrary loan are Sections 107 (Limitations on Exclusive rights: Fair Use) and 108 (Limitations on Exclusive Rights: Reproduction by Libraries and Archives). Related guidelines are "Guidelines for the Proviso of Subsection 108(g)(2)" also called the CONTU Guidelines.
The library that places an interlibrary loan request for a copy is responsible for making sure that the request complies with the Law. That library needs to notify the supplying library that the request complies by including a copyright compliance code: either CCG (Conforms to the Copyright Guidelines) or CCL (Conforms to Copyright Law).
If the compliance code is not included on the request for a copy, the supplying library cannot fill the request.
Overview of how to use the codes:
Conforms to Copyright (CONTU) Guidelines
Section 108 covers the kinds of copying that would typically go on in a library - i.e. copying for preservation, copying to replace a deteriorating copy, copying by patrons at free-standing copiers and so on. Copying for interlibrary loan is covered primarily in section 108(g)(2), which tells us that copyright law is not intended to prevent interlibrary loan but that libraries must not place requests in "such aggregate quantities as to substitute for a subscription". At the time that this language was accepted no one had actually decided what the phrase "such aggregate quantities" meant, so they established a special Commission called CONTU to provide some specific guidance.
The guidelines that resulted from the work of this group (composed of librarians, authors, and publishers) are called the CONTU Guidelines and are intended to give library staff advise on how to determine how many copies received on interlibrary loan are reasonable and how many could be considered too many. It is important to remember that they are guidelines only. The CONTU Guidelines are not part of the Law itself and while they are often criticized by various groups, they haven't been tested in court. Both libraries and publishers consider them to be a compromise they can live with.
The guidelines basically establish the number five as the key - five filled copies from the current five years of a copyrighted title during a single year. Generally, when you find yourself at a point where you've received five copies from the current five years, it is time to look at other factors and consider the situation. Is this a one-time use for a single user, then it may be reasonable to exceed five. Multiple users could mean that demand is increasing and it should be purchased or a commercial source sought.
Note: If you own the title or you have placed a subscription, you aren't bound by the numerical restrictions and can generally request what you require for your users since you aren't using ILL to substitute for a subscription. (Guideline 2a and 2b).
Libraries generally keep an annual ongoing record of filled requests organized or accessible by title and check the file before placing a request. Others analyze requests after the fact and pay royalties for usage over fair use. In any case, you should keep your records for three years.
Conforms to Copyright Law - CCL
Using this code indicates that the request falls under other aspects of 108 or more likely under the more general tests in Section 107. While 108 covers many specific issues that can occur when libraries need to request copies from others, Section 107 covers many of the situations that Section 108 does not. Basically 107 says that you need to consider four issues when you want a copy of a copyrighted item:
- The purpose and character of the use - is it for commercial use or
educational use The nature of the work itself - is it a workbook intended
to be used; is it creative or factual.
- The amount and substantiality of the part being copied.
- The effect on the market value of the work.
Some examples of when to use CCL:
- When the work is in the public domain.
- Then the number of copies received on interlibrary loan exceeds the
recommendation in the CONTU Guidelines but the copy still meets the criteria
of a fair use.
- When the article is more that five years old.
- When the copy is for a user and is for a whole work or substantial
part and the library has determined that a copy cannot be obtained at
a fair price after a reasonable effort.
- When the copy is for a collection to replace a copy that had been purchased
and is now lost, deteriorating etc. and the library has determined after
a reasonable effort that an unused replacement is unavailable at a fair
price. (ALA has issued guidelines on how to determine reasonable effort
and fair price).
Questions
Contact Mary Williamson (608) 263-2754 or william at wils.wisc.edu
Copyright for Libraries
Copyright Resources (Word)
www.librarycopyright.net
This is an excellent site, maintained by the ALA Office for Information
Technology. It includes links to all the major copyright sites, general
copyright information and a copyright Forum and copyright blog. The Forum
allows participants to ask and answer copyright questions. It can be
very useful to help solve odd random problems that arise and to keep
track of the kinds of issues other librarians are handling.
Copyright Office
this is a very good page with links to copies of the law, the major publications like the copyright circulars, a link to a copyright search page and information on new legislation.
UW-Madison copyright web
includes good information on UW Madison copyright policies including interlibrary loan geared to the library user as well as good links to other sites.