# The Librarian's Copyright Companion/Appendix E

Appendix E
CONTU Guidelines on Photocopying under Interlibrary Loan Arrangements (1978)
The CONTU guidelines were developed to assist librarians and copyright proprietors in understanding the amount of photocopying for use in interlibrary loan arrangements permitted under the copyright law. In the spring of 1976 there was realistic expectation that a new copyright law, under consideration for nearly twenty years, would be enacted during that session of Congress. It had become apparent that the House subcommittee was giving serious consideration to modifying the language concerning “systematic reproduction” by libraries in Section 108(g)(2) of the Senate-passed bill to permit photocopying under interlibrary arrangements, unless such arrangements resulted in the borrowing libraries obtaining “such aggregate quantities as to substitute for a subscription to or purchase of” copyrighted works.
The Commission discussed this proposed amendment to the Senate bill at its meeting on April 2, 1976. Pursuant to a request made at that meeting by the Register of Copyrights, serving in her ex officio role, the Commission agreed that it might aid the House and Senate subcommittees by offering its good offices in bringing the principal parties together to see whether agreement could be reached on a definition of “such aggregate quantities.” This offer was accepted by the House and Senate subcommittees and the interested parties, and much of the summer of 1976 was spent by the Commission in working with the parties to secure agreement on “guidelines” interpreting what was to become the proviso in Section ​108(g)(2) relating to “systematic reproduction” by libraries. The pertinent parts of that section, with the proviso added by the House emphasized, follow.
(g) The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee …
(2) engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection (d): Provided, That nothing in this clause prevents a library or archives from participating in inter-library arrangements that do not have, as their purpose of effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.
Before enactment of the new copyright law, the principal library, publisher, and author organizations agreed to the following detailed guidelines defining what “aggregate quantities” would constitute the “systematic reproduction” that would exceed the statutory limitations on a library’s photocopying activities.
Photocopying-Interlibrary Arrangements
Introduction Subsection 108(g)(2) of the bill deals, among other things, with limits on interlibrary 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 phonorecords 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.
The point has been made that the present practice on interlibrary loans and use of photocopies in lieu of loans may be supplemented or even largely replaced by a system in which one or more agencies or institutions, public or private, exist for the specific purpose of providing a central source for photocopies. Of course, these guidelines would not apply to such a situation.
Guidelines for the Proviso of Subsection 108(g)(2)
* No request for a copy or phonorecord of any materials 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.
* The requesting entity shall maintain records of all requests made by it for copies or phonorecords of any materials to which these guidelines apply and shall maintain records of the fulfillment of such requests, 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.
* As part of the review provided for in subsection 108(i), these guidelines shall be reviewed not later than five years from the effective date of this bill.
These guidelines were accepted by the Conference Committee and were incorporated into its report on the new act. During the ensuing twenty months, both library and publisher organizations have reported considerable progress toward adapting their practices to conform with the CONTU guidelines.
The guidelines specifically leave the status of periodical articles more than five years old to future determination. Moreover, institutions set up for the specific purpose of supplying photocopies of copyrighted material are excluded from coverage of the guidelines.