The purpose of this white paper is to provide background and guidance to Association of Research Libraries (ARL) member libraries in the United States that wish to reconsider interlibrary loan (ILL) policies and practices concerning the Commission on New Technological Uses of Copyrighted Works (CONTU) Guidelines. 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 After 40 years without an update, it is clear that the economic analysis of the 1970s is no longer valid, calling into question the continuing relevance of the CONTU Guidelines’ “rule of five.”
We conclude that the CONTU Guidelines are outdated and should no longer be relied on as an appropriate measure of when ILL borrowing exceeds the statutory exemption in 17 U.S.C. § 108(g)(2). We recommend adopting an updated, more flexible, and more appropriate standard grounded in the text of the law rather than relying on CONTU for copyright compliance.
Meg Oakley, Laura Quilter, and Sara Benson
Association of Research Libraries
August 31 2020