SECTION XI: APPENDIX E

CONTU (Commission on New Technological Uses of Copyright Works) GUIDELINES on photocopying and interlibrary arrangements

Introduction

Subsection 108 (g) of the bill deals, among other things, with limits on inter-library arrangements for photocopying. It prohibits systematic photocopying of copyrighted materials but permits interlibrary arrangements “that do not have, as their purpose or effect, that the library or archives receiving such copies or phono-records for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.”

The National Commission on New Technological Uses of Copyrighted Works offered its good offices to the House and Senate subcommittees in bringing the interested parties together to see if agreement could be reached on what a realistic definition would be of “such aggregate quantities.” The Commission consulted with the parties and suggested the interpretation which
follows, on which there has been substantial agreement by the principal library, publisher, and author organizations. The Commission considers the guidelines which follow to be a workable and fair interpretation of the intent of the proviso portion of subsection 108 (g)(2).

These guidelines are intended to provide guidance in the application of section 108 to the most frequently encountered interlibrary case: a library’s obtaining from another library, in lieu of interlibrary loan, copies of articles from relatively recent issues of periodicals those published within five years prior to the date of the request. The guidelines do not specify what aggregate quantity of copies of an article or articles published in a periodical, the issue date of which is more than five years prior to the date when the request for the copy thereof is made, constitutes a substitute for a subscription to such periodical. The meaning of the proviso to subsection 108 (g)(2) in such case is left to future interpretation.

Guidelines for the Proviso of Subsection 108 (G)(2)

1. As used in the proviso of subsection 108 (g) (2), the words, “…such aggregate quantities as to substitute for a subscription to or purchase of such work” shall mean:
a) With respect to any given periodical (as opposed to any given issue of a periodical), filled requests of a library or archives ( a “requesting entity”) within any calendar year for a total of six or more copies of an article or articles published in such periodical within five years prior to the date of the request. These guidelines specifically shall not apply, directly or indirectly, to any request of a requesting entity for a copy or copies of an article or articles published in any issue of periodical, the publication date of which is more than five years prior to the date when the request is made. These guidelines do not define the meaning, with respect to such a request, of “…such aggregate quantities as to substitute for a subscription to (such periodical)”.
b) With respect to any any other material described in subsection 108 (d), (including fiction and poetry), filled request of a requesting entity within any calendar year for a total of six or more copies of phonorecords of or from any given work including a collective work) during the entire period when such material shall be protected by copyright.

2. In the event that a requesting entity
a) shall have in force or shall have entered an order for a subscription to a periodical, or
b) has within its collection, or shall have entered an order for, a copy or phonorecord of any other copyrighted work, material from either category of which it desires to obtain by copy from another library or archives (the “supplying entity”), because the material to be copied is not reasonably available for use by the requesting entity itself, then the fulfillment of such request shall be treated as though the requesting entity made such copy from its own collection. A library or archives may request a copy or phonorecord from a supplying entity only under those circumstances where the requesting entity would have been able, under other provisions of section 108, to supply such copy from materials in its own collection.

3. No request for a copy or phonorecord of any material to which these guidelines apply may be fulfilled by the supplying entity unless such request is accompanied by a representation by the requesting entity that the request was made in conformity with these guidelines.

4. The requesting entity shall maintain records of all requests made by it for copies or phonorecords of any materials to which there apply and shall maintain records of the fulfillment of such request, which records shall be retained until the end of the third complete calendar year after the end of the calendar year in which the respective request shall have been made.

5. As part of the review provided for in subsection 108 (i), guidelines shall be reviewed not later than five years from the effective of this bill.

PDF of CONTU Guidelines