When people think “regulatory capture” they normally think of some interest group pushing for legislation or regulations that benefit them at the expense of either the public or a rival. Whatever the form of the capture, somewhere down the line the government sets rules that benefit some institution.
This is generally true, but this narrative leaves out instances of capture where private organizations set guidelines that are confused with–or presented as–law. This is the case in the Commission on New Technological Uses of Copyrighted Works (CONTU) guidelines for interlibrary loans (ILL), as documented in a new paper from the Association of Research Libraries (ARL):
The CONTU Guidelines were published more than four decades ago at a time when scholarly research and publishing operated in a very different environment from today. Libraries are paying dramatically higher prices per title, have vastly more journal titles from which to choose, and are spending a far greater portion of their budgets for serials than they did in 1978. Even with a substantial portion of a typical academic library’s budget devoted to serials, no library can afford to subscribe to all the journals their researchers may request. Thus, the ability to borrow through ILL is critical for researchers to obtain needed materials to advance research and scholarship, an important goal of copyright law.
The CONTU Guidelines place strict limits on the number of articles a library may borrow from a given journal (the “rule of five”) and require that copyright fees be paid when those limits are exceeded. CONTU was established based on an economic analysis of scholarly publishing, library acquisitions, and ILL arrangements current in the 1970s. The guidelines called for periodic reassessments and updates. After 40 years without an update, it is clear that the economic analysis of the 1970s is no longer valid, calling into question the continuing relevance of the CONTU Guidelines’ “rule of five.”
The CONTU guidelines, finalized in 1978 and never since revised, are wildly out of date. Interlibrary loans are essential for the institutions, as it is impossible for every library to carry every publication a reader or researcher may need. While the transfer of physical copies is perfectly legal under copyright law, the copying of certain materials does raise copyright concerns, despite how essential it is to the functioning of libraries as institutions. To solve this problem, Section 108 of the Copyright Act carves out reproduction activities which are not considered infringing, with the CONTU guidelines acting as informal regulations clarifying the particulars of this section.
This has led to arbitrary rules of thumb such as “the rule of five,” which allows libraries to receive up to five copies from a publication within a year to remain in compliance with section 108’s requirement that “aggregate quantities [reproduced do not] substitute for a subscription to or purchase of such work.”
Unlike copyright law, these guidelines have all the legal force of a well-written law review article or this blog post. Yet they remain dominant. Part of this is due to inertia. The other feature is that as a sort of legal non-aggression pact, compliance is the best way for a library to avoid a lawsuit. Testing the (no doubt more expansive) limits of copyright law under sections 107 or 108 would no doubt be litigated. Even if successful, it’s difficult to ask any library to jump on that barbed wire.
But as expensive as a lawsuit would be, the costs of CONTU are far higher. The paper found that in 2012 alone, libraries spent $1.4 billion on electronic serial subscriptions, and today libraries spend a whopping 81 percent of their budgets on electronic serials. There are far more journals out there than there were in the ‘70s, but that’s an argument for liberalizing interlibrary lending standards: most libraries will have subscriptions to periodicals that are rarely read.
And the average journal subscription cost has grown far beyond the pace of inflation:
Such price increases are inexcusable, and are only made possible because of an outdated set of norms complied with due to the threat of litigation. The paper recommends libraries take a more active role in negotiating subscription terms with publishers with the knowledge that copyright law allows interlibrary lending far more expansive than what the CONTU lines allow.
Whether or not libraries take this advice, it is clear that this set of outdated rules with a veneer of legal legitimacy has a detrimental effect on the bottom line of libraries and access to knowledge.