Interlibrary loan (ILL) is a service that allows your institution's
library to borrow books, journals and other copyrighted material
from other libraries. This type of service has been extended at
most institutions to include the making and sending of copies
even where no actual "loan" is involved.
108 of the Copyright Act allows ILL copying under certain
terms and conditions. Specifically, Section 108 allows a qualifying
library to copy and send to another library portions of copyrighted
materials as part of its ILL service, provided the "aggregate
quantities" of copied items received by the borrowing library
do not substitute a periodical subscription or purchase of a work.
Unfortunately, Section 108 does not define "aggregate quantities"
– creating some ambiguity in interpreting the ILL provision.
To help resolve this uncertainty, the National Commission on New
Technological Uses of Copyrighted Works (CONTU) developed guidelines
during the 1970s with specific allowable amounts for ILL photocopying.
The CONTU guidelines are not law and
have never been reviewed or revised despite the many changes in
technology; however, they still serve as suggestions that help
librarians interpret the ILL provision in the Copyright Act. They
also help reassure copyright holders that ILL will not replace
periodical subscriptions and book purchases by libraries.
Under the CONTU guidelines for delivering photocopies through
ILL, the borrowing library tracks patron requests and, once the
guidelines are exceeded, the borrowing library reports the usage
and pays the required royalty fees.
ILL in the Digital Realm
With the use of digital technology, ILL is evolving and becoming
almost indistinguishable from ordinary "document delivery".
As a result, new guidelines may have to be developed for the digital
environment. At the Conference on Fair Use (CONFU) convened by
the U.S. Department of Commerce in the mid-1990s, an attempt was
made to develop such guidelines, but nothing relevant to ILL was
agreed upon. At the same time, libraries are increasingly transitioning
their journal subscriptions from print to digital collections.
With the move to digital, the collections are managed through
license arrangements with the copyright holders or aggregators.
These individual licenses vary widely by content, publisher, type
of use and more.
The license accepted by the library is a binding contract. If
the library has agreed to the limitations on the use of materials
in ILL, then the library is bound by its agreement. Most libraries
set internal rules for the kinds of licenses that they will accept,
and it is important for libraries to be familiar with the terms
of their various licenses. Some licenses are restrictive in terms
of access to, and use of, the content by library patrons. For
example, content may be accessible to patrons of the library only
through a range of IP addresses or on a single workstation within
the library. Once the material is accessed, some licenses state
that it may only be viewed and printed by the patron.
Some libraries have been successful in negotiating broader terms
of use into their licenses – terms that expand the institution's
and patrons' rights to use their digital collections. For example,
some licenses may allow links to the material for e-reserve purposes
or from a course management system on campus. At the same time,
these or other licenses may restrict other types of use, particularly
In yet other cases, the library may be allowed to use its digital
collection to fulfill interlibrary loan requests, but only on
a limited basis. For example, the library may be permitted to
use content from an electronic journal to fulfill ILL requests,
but only after the material is printed and scanned, or printed
and then delivered to the patron via fax or mail. Publishers allowing
delivery directly from the digital collection are rare and licenses
may even restrict delivery to only faculty, staff and students
on the campus.
Many libraries report interlibrary loan transactions for copyright
clearance at the end of the calendar year, however, more frequent
reporting makes it easier for the library to track its ILL and
helps ensure that permission is recorded on a timely basis. The
responsibility for determining compliance falls on the borrowing
library and, as long as the copyright transaction is reported
on a reasonably timely basis, the borrowing library is fulfilling
its copyright obligation.
Once copyright permission is granted, it is a standard practice
to retain records for three years, although individual institutions'
record retention policies may dictate longer or shorter retention
Library Services vs. For-Profit Information Services
The term ILL is now deemed by most academic institutions to include
the delivery of materials, such as photocopies and digital content,
that are not returned to the lending library. Therefore, in the
broadest sense, ILL has become a type of document delivery.
Traditionally, as its name indicates, ILL has been a library-to-library
transaction. However, newer ILL systems that provide copies directly
to end-users—especially corporate users—blur this
distinction. Many libraries add to the confusion by performing
ILL and document delivery in the same section of the library,
often called the document delivery service (DDS).
In an effort to distinguish traditional, exempt library services
(as defined by section 108 of the Copyright Act) from for-pay
information services such as document delivery, copyright holders
have suggested that if a library charges for an ILL transaction
then the fees received create a commercial benefit for that library
because they help pay the library's costs, and the library
should pay appropriate royalty fees. On the other hand, many libraries
claim that fees received for ILL transactions result in no commercial
gain because they cover just a portion of the copying, mailing
and staff costs.
The Fee Based Services vs. Non Fee Based
Services chart provides an overview of the differences between
library services (as defined by section 108 of the Copyright Act)
and for-profit information services, and offers guidance as to
when copyright permission and royalty payments are, and are not,