Research Libraries, Publishers Stake Out Positions on International ILL
By Michael Kelley Jun 14, 2011A battle is brewing between research libraries and an association of academic publishers over the right to engage in international interlibrary loans and document delivery, both well-established library practices that are increasingly important to scholarship as the amount of discoverable information expands.
The International Association of Scientific, Technical & Medical Publishers (STM), representing some of the major STM publishers like Elsevier, Wiley, Springer, among others, released a statement on June 8, which says that library exceptions for document delivery in the digital environment, particularly of individual journal articles, are justified only in very limited circumstances and with the permission of the publisher. Among other points, STM asserts that:
- In order to "maximize legal clarity," cross-border deliveries "should be governed by voluntary licenses negotiated directly with publishers";
- Direct digital delivery to an end-user "is best governed and coordinated by rights-holders";
- Libraries should only be able to deliver on-site, print copies to walk-in library patrons;
- Libraries should exercise "due diligence" to ensure that any deliveries to individuals are for "private, non-commercial use."
"We do believe that digital document delivery must take place in a licensed environment, especially for international deliveries and especially for commercial deliveries," said Michael Mabe, the chief executive office of STM.
The association, which is headquartered in Oxford, England, has over 110 members in 21 countries who collectively publish nearly 66 percent of all journal articles and tens of thousands of monographs and reference works, according to its website.
"It seems to want to place limits on ILL and document delivery that are completely unnecessary under American law," said Brandon Butler, the director of Public Policy Initiatives for the Association of Research Libraries (ARL). "They are just asking us to forebear from using the rights the law gives to libraries," he said, referring to Section 108 of U.S. Copyright Law.
ARL reaffirms precedence of copyright law
An ARL task force has published a three-part report this month that reaffirms the right of domestic research libraries to engage in international interlibrary loan and document delivery and to send copies of some copyrighted works to foreign libraries, "provided the libraries meet the requirements of the law."
ARL cautions its membership not to allow license agreements to supplant the rights granted by Section 108, which is "a leading legal support for the reproduction and distribution of copyrighted works in ILL."
"Principles advanced by a group of publishers do not set aside fair use and library exceptions in the U.S. copyright law," said James Neal, Vice President for Information Services and University Librarian, Columbia University, who chaired the ARL task force.
"ILL and document delivery are permitted by U.S. law. Stop. Period. Libraries can do this without asking permission. Stop. Period." said Butler, who coauthored a section of the task force's report.
Butler said that the ARL formed its task force because STM has been going to ARL members and saying that they need to ask for the publisher's permission before engaging in international ILL, or risk being in violation of U.S. copyright law.
"I guess they think libraries don't have lawyers," Butler said. "They do mean to affect our behavior, and it's not going to work. ILL is an important and long-established tradition, and the issue is extremely important to us," he said.
Adjusting to new market realities
Kevin Smith, the scholarly communications officer at Duke University and another member of the ARL task force, wrote on his blog that STM has "been carrying on a quiet campaign of intimidation regarding ILL."
"The content industries are clearly having trouble adjusting to the new realities of scholarly communications, so an attempt to intimidate libraries into not taking advantage of these opportunities might be understandable," Smith told LJ. "What they propose, allowing only print materials obtained through ILL to be given to patrons who are physically present, while absurd from a practical standpoint, would assuage the fear of uncontrolled digital copies floating around," he said.
Mabe declined to comment on allegations of intimidation.
"The more troubling view of these principles is that they represent a shift in business model for the publishing industry, from one in which they market new scholarship to [a model] based on permanent licensing of material that is already commercially available. Such pay-per-use is not sanctioned by the copyright law, but it certainly is attractive as a cheap way to create a new revenue stream," Smith said.
Butler noted that the publishers' interest in governing such individual article transactions, which libraries have been engaged in for many years, increased once the micropayment mechanism emerged that allowed them to monetize access to such content.
"They want to charge for every access to their content, but there is a long tradition of libraries sharing these materials where appropriate," he said. "So, this is an attack on the legal status quo."
Mabe said that publishers investment in the digital infrastructure has made individual articles available "at a fingertip or mouse-click," and this has changed the market from the '60s and '70s when ILL and photocopiers became widespread and articles were only available inside a whole issue of a journal.
"Market solutions in every country that we are aware of provide better digital delivery alternatives than existing copyright exceptions, which tend to be limited and for the most part confined to traditional nondigital delivery. In this sense, licenses are, in fact, a way to make something available that might not be available as a matter of law," Mabe said.
"It is quite clear that the stakeholders involved in the U.S. Copyright Office's Section 108 report did not believe that U.S. libraries can provide digital document supply without authorization. In any event, we believe that licensing solutions provide greater certainty and clarity for rightsholders, libraries, and users," Mabe said.
Peter Hirtle, a senior policy advisor at the Cornell University Library, who also served on the Section 108 Study Group sponsored by the Library of Congress and the Copyright Office that Mabe referred to, disagreed.
"I can't find any discussion of the issue in the final report. It is a position that STM advanced in its comment to the Study Group," Hirtle said.
"The STM statement, if applied to ILL transactions, would mean that international ILL would be so restricted that it really wouldn't exist anymore," Hirtle said. "They are saying if a publisher is selling copies of articles then you shouldn't be getting it from a library. They want you to buy it from them, which is terrific if the cost is low. But the costs from publishers can be anywhere from $40 to $120 an article," he said. "In effect, they are saying we should not use Section 108 to govern the transfer of articles across borders but instead seek permission of and pay publishers."
"They also are requesting that copies not be delivered electronically. We've been doing that for 20 years through ARIEL and other ILL systems and I haven't noticed that it's brought publishers to their knees," Hirtle said.
Hirtle noted that publishers often conflate document delivery and ILL. Both are permitted by copyright law, but the former is mainly an institution-individual transaction while the latter is institution to institution.
"It is in the publishers' best interests to create an environment of fear, uncertainty, and doubt concerning long-established library practices," Hirtle said. "If they can create a climate of fear and uncertainty, some librarians may conclude that it is safest to pay for uses that are in reality legal. The ARL statement is a positive reminder that traditional interlibrary loan practices may not be as legally risky as the STM publishers would have us believe," he said.
Butler noted that the Section 108 report does say (in footnote 161 on page 96) that "document delivery" is not covered by the library exceptions to the Copyright Act, but it defines "document delivery" to mean "commercial services that provide reproduced copies of works directly to users." Any limitation on commercial activities is irrelevant to libraries.
"The STM folks have consistently conflated commercial 'document delivery' services with non-profit activities of research libraries. Their principles statement repeats that conflation. They are ignoring a very important distinction, because non-profit library activities are favored by the law," Butler said.
STM's call for "due diligence" also struck the librarians as a shifting of the responsibility for patrolling copyright practice onto the libraries and away from the individual users, putting the librarians in the uncomfortable position of having to quiz patrons about whether the ILL item was truly intended for private, noncommercial purpose. Mabe said that was, in fact, the organization's position.
Growing need for international ILL
The shift from copyright law to license agreements and the growing adoption of ebooks, and its potential impact on international ILL, is occurring at a time when resource sharing has become even more critical to the mission of research libraries.
The ARL report notes that OCLC and DOCLINE, by "aggressively loading participating libraries' local holdings records," have made it far easier to locate materials from around the world. As of 2010, 57.5 percent of OCLC records are non-English.
This expansion of what is discoverable makes it more vital, the ARL report concludes, that ILL not be restricted to the same country.
"International ILL is increasingly important mostly because research is becoming ever more interdisciplinary and globally focused," Smith said. "Since many of our ILL agreements are reciprocal, the suggestion that U.S. libraries should not lend to foreign institutions could have the effect of also closing off borrowing from those foreign institutions, which would be a serious detriment to research in the U.S.," he said.
Although, copyright law recognizes ILL, there is no single licensing standard. The ARL report calls on its members to "actively promote inclusion of ILL privileges when negotiating license agreements or add language stating that nothing in the license may restrict exceptions permitted under copyright law." ARL may make the inclusion of specific ILL clauses that are consistent with research libraries' mission and best practices "a deal-breaker."
STM said that by following the principles laid out in its statement that "policy makers can ensure that document delivery will continue in its role as a flexible and useful access-enabling tool in a system of scholarly communication. ..."
