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White Paper Encourages Libraries to Reevaluate Use of CONTU Guidelines in Interlibrary Loan

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We are delighted to announce the publication of a new ARL white paper: Modern Interlibrary Loan Practices: Moving beyond the CONTU Guidelines.

The spoiler is in the subtitle, “Moving beyond the CONTU Guidelines.” Our review found that the Commission on New Technological Uses of Copyrighted Works (CONTU) Guidelines, which never had the force of law, are woefully out-of-date. Developed in the 1970s, the guidelines were based on journal pricing, scholarly publishing, and library acquisitions practices that are now over 40 years old.

The CONTU Guidelines were published, in 1976 and 1978, with the understanding that they would “undoubtedly require…continuous reevaluation and adjustment.” Unfortunately, that reevaluation and adjustment never took place. For decades, libraries have followed the guidelines, mechanically paying ever-increasing fees based on a formula (the “rule of five”) premised on such historical data as average annual subscription costs ranging from $13 to $108, depending on discipline, and copyright fees around $1.25 per article. The rule of five, for instance, was developed with the understanding that “[a] typical crossover point for the add/drop decision is four or five uses per journal title per year…with a subscription price of forty dollars and external lending fees of eight dollars.”

Clearly times have changed.

The reexamination of the role of CONTU in interlibrary lending is long overdue. Our white paper builds on work done by the authors at their home institutions, and in particular Meg Oakley’s research into the history of CONTU. Our paper also builds on the work of other librarians who have been reconsidering the role of CONTU in library resource-sharing guidelines.

The white paper includes the history and legal status of CONTU, along with a review of the applicable copyright law, including Section 108 of the Copyright Act (reproduction by libraries and archives) and Section 107 (fair use).

It is our hope that libraries and library associations will use this white paper as a springboard for conversations about interlibrary lending, licensing practices, and journal subscriptions. We hope that these conversations will help institutions develop standards for interlibrary lending and copyright payments that better reflect the current research and publishing environment, and better fulfill the constitutional and statutory goals of copyright.

This paper will be of interest to any library staff and administrators who provide or support resource-sharing services. We are not proposing particular policies, but do recommend that libraries consider whether the CONTU guidelines, based on 40-year-old economics, are appropriate measures today.

We encourage library staff to ask themselves these questions:

  • How do you decide to subscribe to journals, or acquire backfiles or full-text of journals or books? What role does interlibrary borrowing play in that decision?
  • The Copyright Act in Section 108(d), along with Section 108(g), authorizes library copying for interlibrary lending, so long as it is not in “such aggregate quantities as to substitute for a subscription to or purchase of” the work. What metrics can you consider to determine whether your library is borrowing in “such aggregate quantities as to substitute for a subscription…or purchase”?
  • What would your library’s “crossover point” be today? The crossover point, as defined in one of the CONTU reports, was the “add/drop” point at which lending fees and copyright clearance were roughly equivalent to borrowing costs.
  • How can your library be a good-faith participant in the market for scholarly publications? In other words, how can your library best incentivize and support the creation and publication of scholarship and new knowledge, which is the ultimate purpose of copyright?
  • Are there times when fair use (Section 107) should be considered in the context of particular ILL transactions, or more generally in structuring an overall policy?
  • Are there times or reasons why the CONTU Guidelines would be better than relying on the standard set forth in the statute (“such aggregate quantities as to substitute for a subscription to or purchase of” a work)?

We also encourage licensing librarians and staff to carefully review their electronic-resource contracts for language that unnecessarily (and sometimes inappropriately) mandates compliance with CONTU Guidelines. Such clauses should always be deleted or meaningfully modified to simply apply “compliance with copyright law” (CCL) instead of “compliance with CONTU Guidelines” (CCG).

In the months and years to come, we look forward to continued reexamination of approaches to interlibrary borrowing and lending. We are confident that libraries can use this opportunity to develop new approaches that support scholarship and research, as well as scholarly authors and academic publishers.

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