Coalition of Library Consortia Joins ARL in Opposing Publishers' Position on International ILL
By Michael Kelley Jun 22, 2011The International Coalition of Library Consortia (ICOLC) has joined the fray over the right of libraries to engage in international interlibrary loan and document delivery.
The ICOLC released a statement today critical of the position staked out on June 8 by the International Association of Scientific Technical and Medical Publishers (STM) that argued that library exceptions for interlibrary loan and 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.
"We felt we needed to respond quickly and clearly because we think this is the first volley in what is a potentially harmful approach to the issues of sharing information in a digital world," said Tracy L. Thompson-Przylucki, executive director of the New England Law Library Consortium (NELLCO), which is a member of ICOLC. "We talked about whether we would wait until our next meeting in the fall to address it in a more formal way, but we felt it was so important that we needed to respond to it as soon as possible," she said.
The ICOLC statement reads, in part:
While intellectual property laws vary from country to country, STM's approach would radically alter well-established library practices that advance knowledge, support scholarship, and are compliant with current copyright laws. The STM recommendations are in conflict with widely held principles that provide a copyright exception for interlibrary loan (ILL) activities. The regime anticipated by the STM statement would place unfair restrictions on researchers' access to information.
STM, which represents publishers like Elsevier, Wiley, Springer, among others, has contended in its statement:
- 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."
Michael Mabe, the chief executive office of STM, said that the organization believes digital document delivery must take place in a licensed environment, especially for international and commercial deliveries.
ICOLC, which is an informal international group comprising about 200 library consortia, has now joined with the Association of Research Libraries (ARL) in opposing STM's effort. An ARL task force has published a three-part report 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.
Ann Okerson, associate university librarian at Yale University and the director of the NorthEast Research Libraries Consortium (NERL) Consortium, said that the International Federation of Library Associations and Institutions (IFLA) has a draft treaty on Copyright Exceptions and Limitations for Libraries and Archives that is clear on ILL and document delivery, stating in Article 7:
No library within a country can own every book, journal, other published work, or multimedia materials (to which related rights also apply), and archives hold unique content in all media. It is sometimes necessary for libraries and archives to supply copies of works to users upon request... It is essential for global knowledge exchange and the process of scholarly communication that libraries and archives not be prevented by copyright laws from supplying copies of works directly to users, using the most efficient means of communication....
Okerson said that ICOLC hoped the IFLA treaty would "receive wide discussion with stakeholders in WIPO [World Intellectual Property Organization] and other settings."
"In this statement, STM would undermine both copyright and some of the highest values delivered by libraries, by bringing permissions discourse to a library-publisher level, thereby impacting consistency, affordability, and scalability," Okerson said. "It is an unfortunate position for one of the world's largest organizations of publishing heads of houses to have publicly adopted," she said.
In its statement released today, ICOLC takes issue with STM's position nearly point for point, maintaining that:
- cross-border deliveries are adequately and appropriately governed by current copyright law;
- digital document delivery directly to an end-user is best coordinated through the end-user's library or community of learners;
- current copyright law appropriately places the burden on the library user to affirm that the documents they receive are for private, non-commercial use;
- libraries are able to deliver on-site articles to library walk-up patrons in any format, including both digital and print.;
Carlo Scollo Lavizzari, STM's outside legal counsel, commented on a previous LJ article about the final point.
"I would just like to put on record that STM's Document Delivery Statement does not suggest that 'libraries should only be able to deliver on-site, print copies to walk-in users' -STM has found through our experiences in negotiating for international supply arrangements that a 'hybrid' arrangement which permits libraries to deliver digitally to each other, but where the patron is provided a pick up copy in print, is a type of arrangement that publishers can support at a differentiated fee rate significantly lower than 'normal' document delivery rates. We do not suggest at all that libraries should be limited to this, but that this is one option among many," Lavizzari wrote.
STM also maintains that the Berne Convention's three-step test must govern any discussion of copyright exceptions. ICOLC said, under existing principles and laws, ILL is consistent with the test.
The three-step test says that "Members [international treaty signatories] shall confine [copyright law] limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder."
For more background and opinion about the three-step test see this 2008 blog post by William Patry, author of Moral Panics and the Copyright Wars (Oxford University Press, 2009).
"I think [the STM position] is pretty significant because there's so much unsettled with respect to copyright because of the new digital formats and the rethinking the copyright law and its exceptions," Thompson-Przylucki said. "We need to pay a lot of attention to it."
