How do public libraries use digital interlibrary loan? Copyright, a Chicago roundtable and very cold weather

I told Marsha I'd blog the Chicago Jan. 31 Copyright Roundtable that I participated in (BRRRR!). The roundtable was sponsored by the Library of Congress Section 108 Study Group in cooperation with the Copyright Office.

I've been procrastinating because I'm waiting for a brilliant inspiration to help solve the insanely difficult problem: how to rewrite the library copyright exception (Section 108) into law in the digital era.  Now I realize my best hope is to ask you, the readers, for your thoughts on public libraries and digital interlibrary loan.

First off, do any public libraries make digital copies of text, videos, cds or anything else for interlibrary loan?  Is there a fantastic reference librarian reading this post who could point me to any articles or sources on this?  When I ask colleagues, the answer is: No. We only send or receive digital copies if it's part of an electronic database, and then the interlibrary loan is governed by the license agreement we signed.   

I don't know of anyone out there who is digitizing items to send out on ILL in public libraries, and it's hard to imagine.  My impressions are extremely anecdotal though.  If a reader knows of public libraries that make digital copies for ILL, perhaps you could comment on why/how you're doing this, and whether you're following Sect. 108 as you interpret it.

And, thinking a little ahead, would you start digitizing items to send out on ILL if you had clearer guidance in the law?  Would it affect your contract negotiations with vendors when you negotiate the ILL clause?  And the ultimate question: IF YOU COULD REWRITE THE LIBRARY EXCEPTION(S) IN COPYRIGHT LAW,  (esp. the interlibrary loan provisions that the roundtable is currently looking at), WHAT WOULD YOU SAY?   

This is really hard.  Just about every librarian I know cares a lot about respecting copyright, and is concerned along with the publishers that digital copies can be copied and spread throughout the world with a few clicks.  On the other hand, as more and more of the good stuff comes (or is born) digital, libraries don't want to get stuck in a pay-per-use world.  Copyright law traditionally has been a balance between owners and users rights. This is necessarily so, in fact, to keep a cycle of creation.

Users haven't had to pay-per-use for personal research, study etc. use.  Why should that change just because the medium has changed? The scariest question asked in the federal register, in my opinion, was one that would eviscerate library-made personal copies for library patrons under 108 altogether:

9. Because there is a growing market for articles and other portions of copyrighted works, should a provision be added to subsection (d), similar to that in subsection (e), requiring libraries and archives to first determine on the basis of a reasonable investigation that a copy of a requested item cannot be readily obtained at a fair price before creating a copy of a portion of a work in response to a patron’s request? Does the requirement, whether as applied to subsection (e) now or if applied to subsection (d), need to be revised to clarify whether a copy of the work available for license by the library or archives, but not for purchase, qualifies as one that can be ‘‘obtained’’?

I must say, this is overboard in the extreme. Section (d) allows libraries to make copies of articles for users.  Libraries are prohibited in (g) from engaging in "systematic reproduction or distribution of single or multiple copies" already. The "Rule of Five" CONTU Guidelines (not law, but widely used by academic libraries) limits requests to five articles in the same periodical title published within the last five years.  Any additional requests then pay royalties or get permission via the CCC, document delivery services, the publishers etc.

If libraries have to check to see if they can purchase the article, then this part of the  library exception essentially disappears.

Subsection (e), for those who don't know, is the section that allows libraries to make copies of an entire work (e.g. a book) or substantial part of it.  Libraries have to make a reasonable investigation that a copy cannot be obtained at a fair price.  To be honest, I don't ever remember any public library I've worked in or with making use of subsection (e).  What are readers' experiences?

My comments about the roundtable: Despite the opposing interests of content owners and librarians, the Chicago roundtable was conducted with amity and even great humor by the Committee's cochairs: Lolly Gasaway, Director, Law Library and Professor of Law, University of North Carolina, and Richard Rudick, former Vice President and General Counsel, John Wiley and Sons. Mary Rasenberger from the Copyright Office assisted the Committee.  Marybeth Peters, the United States Register of Copyrights participated. 

To me, perhaps the most interesting point was made by Marybeth, who offered her recollections of the library/publisher negotiations which led to library provisions in the 1976 Act. If I understood correctly, she said that she recalled the Section 108 library exception was driven by librarians, and an exception for text copies for ILL was pressed for.  The ILL exception doesn't apply to musical works (scores), pictorial, graphic, sculptural works, motion pictures and other audiovisual works (except those dealing with news). Why can't we make ILL copies of musical works (scores) and the other formats? Unless someone was there making the case, exceptions didn't make it into the law.  Also, people perform from scores, and if a researcher wants to look at a score, then 107 (fair use) may be a better avenue.  To me, this underscored the importance of using Fair Use and not thinking in a tunnel that 108 is the only library exception.  Even more important, it  underscored the importance of showing up. This was my first time participating in a group that is actively working to revise copyright law for libraries, and frankly, I thought it was pretty exciting to see up close the discussion by the interested parties.  I liked it that anyone could participate, or at least apply to participate via the Federal Register notice.

Moreover, anyone can send in comments to the Copyright Office by March 9th - responding to questions posed in the Federal Register, focusing on interlibrary loan in the digital era.   

Note: The Library of Congress National Digital Information Infrastructure and Preservation Program (NDIIPP) sponsors the Section 108 Study Group in cooperation with the U.S. Copyright Office. Transcripts will be posted, as they were for the March 2006 roundtables which focused on eligibility and preservation. Peter Hirtle is on the Committee :>

Comments

[M Belvadi]

I know academic libraries better than public ones, but any public libraries who are customers of ILLiad (see list at http://www.oclc.org/common/cgi-oclc/
pi.pl?group=illd&max=800&sortfield=state)
or customers of Ariel, or who choose to use the free Odyssey software that is also part of ILLiad, are using (or could use) these systems to transmit articles for ILL purposes. Most of the time, the article is scanned and then transmitted, but born-digital articles can also be sent this way. And this doesn't count all the libraries who informally send articles via email to the other library if the other library doesn't use one of those software packages. The technology is there, and it clearly is being used by all kinds of libraries that participate in the OCLC-centered ILL system.