10 Interlibrary Loan

Desired Result

The goal of the interlibrary loan (ILL) clause is to specify that ILL of the licensed content is permitted, and to clarify any necessary details around the process of ILL.

Essentials of the Law

Interlibrary loan (ILL) and interlibrary borrowing (ILB), like fair use, are recognized in US federal copyright law; specific statutory reference to these practices is found in section 108, though fair use may also be available to permit interlibrary sharing under appropriate circumstances.  Section 108 specifies that libraries and archives that are open to the public or to outside researchers may provide copies of items in their collections to users at other institutions.  Under section 108, the borrowing library may not use ILL in a manner that would, in purpose or effect, “substitute for a subscription to or purchase of such work.”^[1]  Requests that the institution deems to exceed that standard should be separately licensed, which can be facilitated through ILL management software such as OCLC’s ILLiad service.

The ILL clause in an eresource contract should try to be coextensive with the legal provisions in section 108.  As with fair use clauses, you want to avoid putting contractual restrictions on rights that the institution would otherwise hold under copyright.

Desired Language

An explicit ILL clause:

Interlibrary Loan. Licensee may fulfill requests from other institutions, a practice commonly called Interlibrary Loan. Licensee agrees to fulfill such requests in accordance with Sections 107 and 108 of the U.S. Copyright Act. Requests may be fulfilled using electronic, paper, or intermediated means.^[2]

As noted above, ILL can also be included in a well-written fair use savings clause, if the savings clause clearly includes all exceptions and limitations included in the Copyright Act:

Licensee and Authorized Users may make all use of the Licensed Materials as is consistent with the United States Copyright Act of 1976, as amended (17 U.S.C. §101, et seq.) including all limitations on and exceptions to the exclusive rights as provided therein.^[3]

Tricks and Traps

In general, less is more when it comes to ILL clauses.  The US Copyright Act allows for broad ILL practices, and generally any specifics included in an eresource contract only risk adding limitations to what the library is entitled to do.  A simple statement that the law is unaffected may therefore be in the library’s best interest.  Additionally, many ILL clauses place the burden of complying with ILL limits on the lending library, whereas the law places the burden on the borrowing library (the borrowing library is responsible for securing a license for ILB requests that exceed the scope of section 108(g)).  When negotiating an eresource license a simple statement that the law is unaffected avoids taking on unnecessary monitoring requirements on the lending side of an ILL/ILB program.

A common feature in older ILL clauses, including in some model licenses,^[4] is a reference to the CONTU guidelines.  CONTU, the Commission on New Technological Uses of Copyrighted Works, was a governmental committee created in 1974 to provide additional guidance on certain applications of copyright. The CONTU final report included guidelines on photocopying for ILL, including the “rule of five” which limits ILL borrowing to five articles published within the last five years from a given title.^[5] The CONTU guidelines, however, are no more than  a (sometimes controversial) interpretation of the law, rather than an actual legal standard.  Additionally, the CONTU guidelines were intended to be continuously updated, but were not, and it’s highly questionable that what was reasonable for ILL half a century ago is still reasonable today.  Language incorporating the CONTU guidelines into an eresource license should therefore be avoided.^[6]

Other potential inclusions in ILL clauses to be mindful of include:

• Allowing ILL only within the licensee’s country. Section 108 has no such restriction, and this provision is generally intended to prevent institutions in countries with relatively generous ILL provisions from supplying copies to libraries in other countries where the law is less favorable.  International cooperation in ILL is good for the entire global library community, however, and this language should be resisted.  Additionally, since many ILL software platforms cannot distinguish between domestic and international ILL requests, agreeing to country-based restrictions may require manual processing by ILL staff, increasing the staff burden of ILL/ILB programs.

• Allowing ILL only in certain formats or with certain restrictions, for example only allowing ILL via physical mail, fax, or transmission via Ariel.^[7] This is also very common, and is more restrictive than section 108.  In addition to unnecessarily burdening ILL staff and library patrons with complex and burdensome requirements, many ILL clauses also risk locking-in out of date or proprietary technology if only one transmission method is permitted by contract.

• Allowing only certain quantities of material to be shared by a lending library via ILL (for example, allowing ILL of one chapter or article, specific page number limitations, or “limited amounts” of the licensed content).  Removing these limitations in favor of sharing to the extent permitted by US copyright law avoids restricting ILL beyond what is required by law and allows an ILL/ILB program to implement uniform practices across all content, rather than having to check each license for quantity limitations.
• Allowing only certain kinds of material to be made available by ILL, for example excluding ebooks from the ILL terms.  Lending of ebooks can be particularly problematic for inclusion in ILL clauses.  Copying whole books (without regard for format) for ILL is permitted under 17 U.S.C. 108(e), but only after “a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price.”^[8] Some institutions have negotiated specifically to include whole ebook lending in their contracts.^[9] Generally something that is available under an eresource license is not going to satisfy the statutory requirements of 108(e), so this is an example where negotiation may result in broader reuse rights than the general legal standard.

Note that not all vendors are amenable to interlibrary loan with their licensed eresources. If a vendor, for example, sells digital financial reports to the public for upwards of $10,000 per report, they may be disinclined to let an institution loan such a report to a non-subscribing institution. Your mileage may vary in your ability to negotiate for interlibrary loan for business and data resources, which may be acceptable to you depending on your campus needs.

Importance and Risk

The importance of an explicit ILL clause is likely to vary based on the nature of the licensed product and other related license terms.  Some licensed databases and data products, for example, may not lend themselves to easily being shared, and ILL may therefore not be a priority for those products.  For traditional text-based media, however, it is important that contract terms not erode the balance of rights allowed under copyright law.  An explicit clause specifying ILL rights may not be necessary, if a savings clause elsewhere in the contract preserves the legal right. Nevertheless, it may still be desirable to explicitly lay out the library’s expectation that these rights will apply to this content.

If you are having difficulty securing an ILL clause, you may need to assess how important the ILL right is for the particular resource at issue, given that some vendors may ascribe tightly to CONTU or prohibit ILL altogether. How much of a concern this is for you will depend on the anticipated usage of the materials or the needs of your institution.