Coalition for Networked Information
Information Policies: A Compilation of Position Statements, Principles,
Statutes, and Other Pertinent Statements
CONTU (National Commission on New
Technological Uses of Copyright Works)
Source: Final Report of the National Commission on New
Technological Uses of Copyrighted Works, July 31, 1978,
Library of Congress, Washington, DC, 1979, pages 54-55.
CONTU Guidelines on Photocopying under Interlibrary Loan
Arrangements
The CONTU guidelines were developed to assist librarians and
copyright proprietors in understanding the amount of photocopying for
use in interlibrary loan arrangements permitted under the copyright
law. In the spring of 1976 there was realistic expectation that a new
copyright law, under consideration for nearly twenty years, would be
enacted during that session of Congress. It had become apparent that
the House subcommittee was giving serious consideration to modifying
the language concerning "systematic reproduction" by libraries in
Section 108(g)(2) of the Senate-passed bill to permit photocopying
under interlibrary arrangements, unless such arrangements resulted in
the borrowing libraries obtaining "such aggregate quantities as to
substitute for a subscription to or purchase of" copyrighted works.
The Commission discussed this proposed amendment to the Senate bill
at its meeting on April 2, 1976. Pursuant to a request made at that
meeting by the Register of Copyrights, serving in her ex officio role, the
Commission agreed that it might aid the House and Senate
subcommittees by offering its good offices in bringing the principal
parties together to see whether agreement could be reached on a
definition of "such aggregate quantities." This offer was accepted by
the House and Senate subcommittees and the interested parties, and
much of the summer of 1976 was spent by the Commission in working
with the parties to secure agreement on "guidelines" interpreting what
was to become the proviso in Section 108(g)(2) relating to "systematic
reproduction" by libraries. The pertinent parts of that section, with the
proviso added by the House emphasized, follow:
(g) The rights of reproduction and distribution under this section extend
to the isolated and unrelated reproduction or distribution of a single
copy or phonorecord of the same material on separate occasions, but do
not extend to cases where the library or archives, or its employee...
(2) engages in the systematic reproduction or distribution of single or
multiple copies or phonorecords of material described in subsection (d):
Provided, That nothing in this clause prevents a library or archives
from participating in interlibrary arrangements that do not have, as
their purpose of effect, that the library or archives receiving such
copies or phonorecords for distribution does so in such aggregate
quantities as to substitute for a subscription to or purchase of such work.
Before enactment of the new copyright law, the principal library,
publisher, and author organizations agreed to the following detailed
guidelines defining what "aggregate quantities" would constitute the
"systematic reproduction" that would exceed the statutory limitations
on a library's photocopying activities.
Photocopying-Interlibrary Arrangements
Introduction
Subsection 108(g)(2) of the bill deals, among other things, with limits
on interlibrary arrangements for photocopying. It prohibits systematic
photocopying of copyrighted materials but permits interlibrary
arrangements "that do not have, as their purpose or effect, that the
library or archives receiving such copies or phonorecords for
distribution does so in such aggregate quantities as to substitute for a
subscription to or purchase of such work."
The National Commission on New Technological Uses of Copyrighted
Works offered its good offices to the House and Senate subcommittees in
bringing the interested parties together to see if agreement could be
reached on what a realistic definition would be of "such aggregate
quantities." The Commission consulted with the parties and suggested
the interpretation which follows, on which there has been substantial
agreement by the principal library, publisher, and author
organizations. The Commission considers the guidelines which follow
to be a workable and fair interpretation of the intent of the proviso
portion of subsection 108(g)(2).
These guidelines are intended to provide guidance in the application of
section 108 to the most frequently encountered interlibrary case: a
library's obtaining from another library, in lieu of interlibrary loan,
copies of articles from relatively recent issues of periodicals--those
published within five years prior to the date of the request. The
guidelines do not specify what aggregate quantity of copies of an article
or articles published in a periodical, the issue date of which is more
than five years prior to the date when the request for the copy thereof
is made, constitutes a substitute for a subscription to such periodical.
The meaning of the proviso to subsection 108(g)(2) in such case is left to
future interpretation.
The point has been made that the present practice on interlibrary loans
and use of photocopies in lieu of loans may be supplemented or even
largely replaced by a system in which one or more agencies or
institutions, public or private, exist for the specific purpose of
providing a central source for photocopies. Of course, these guidelines
would not apply to such a situation.
Guidelines for the Proviso of Subsection 108(g)(2)
1. As used in the proviso of subsection 108(g)(2), the words "...
such aggregate quantities as to substitute for a subscription to or purchase
of such work" shall mean:
(a) with respect to any given periodical (as opposed to any
given issue of a periodical), filled requests of a library or
archives (a "requesting entity") within any calendar year for a
total of six or more copies of an article or articles published in
such periodical within five years prior to the date of the
request. These guidelines specifically shall not apply, directly
or indirectly, to any request of a requesting entity for a copy or
copies of an article or articles published in any issue of a
periodical, the publication date of which is more than five
years prior to the date when the request is made. These
guidelines do not define the meaning, with respect to such a
request, of "...such aggregate quantities as to substitute for a
subscription to [such periodical]."
(b) With respect to any other material described in subsection
108(d), including fiction and poetry), filled requests of a requesting entity
within any calendar year for a total of six or more copies or
phonorecords of or from any given work (including a collective work)
during the entire period when such material shall be protected by
copyright.
2. In the event that a requesting entity:
(a) shall have in force or shall have entered an order for a
subscription to a periodical, or
(b) has within its collection, or shall have entered an order
for, a copy of phonorecord of any other copyrighted work, materials
from either category of which it desires to obtain by copy from
another library or archives (the "supplying entity"), because
the material to be copied is not reasonably available for use by
the requesting entity itself, then the fulfillment of such request
shall be treated as though the requesting entity made such copy
from its own collection. A library or archives may request a
copy or phonorecord from a supplying entity only under those
circumstances where the requesting entity would have been
able, under the other provisos of section 108, to supply such copy
from materials in its own collection.
3. No request for a copy or phonorecord of any materials to which
these guidelines apply may be fulfilled by the supplying entity unless
such request is accompanied by a representation by the requesting entity
that the request was made in conformity with these guidelines.
4. The requesting entity shall maintain records of all requests
made by it for copies or phonorecords of any materials to which these
guidelines apply and shall maintain records of the fulfillment of such
requests, which records shall be retained until the end of the third
complete calendar year after the end of the calendar year in which the
respective request shall have been made.
5. As part of the review provided for in subsection 108(i), these
guidelines shall be reviewed not later than five years from the
effective date of this bill.
These guidelines were accepted by the Conference Committee and were
incorporated into its report on the new act. During the ensuing twenty
months, both library and publisher organizations have reported
considerable progress toward adapting their practices to conform with
the CONTU guidelines.
The guidelines specifically leave the status of periodical articles more
than five years old to future determination. Moreover, institutions set
up for the specific purpose of supplying photocopies of copyrighted
material are excluded from coverage of the guidelines.
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