February 2, 2011
Backed Into a Corner
Article 1, Section 8, Clause 8 of the U.S. Constitution provides for Congress to "promote the progress of science and useful arts, by securiting for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Toward that goal, Congress passed the interlibrary loan exception in section 108 of the copyright law. This allows us to make a single copy of something to send to someone who doesn't own the original. However, to make sure we don't abuse the exception, the Copyright Office gave us the CONTU guidelines.
The CONTU guidelines state:
(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 a 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]."
So the problem comes when you have people making requests for materials outside your library's scope of collection. Unlike law, other professions rely much more on peer reviewed literature than student run journals, and they charge you for the privilege.
Let say someone(s) requests articles from the Journal of the American Medical Association. JAMA is a very popular general science journal that has not yet joined the open access movement in the scientific community. A quick search in the footnotes on Lexis US Law Reviews and Journals reveals that 374 articles have cited to this Journal in that database. It sits in the number 2 position on the eigenfactor scale, and has an impact factor of 28.9 (which is pretty good). So, it is not unlikely that lawyers will have a need to read articles from this journal from time to time. Six articles in five years is not really very many. And, the larger your faculty or student body - or company - the more likely it is that you would run afoul of the guidelines for the ILL exception.
Even if you are not hitting the CONTU benchmark for copyright infringement, if you use the Copyright Clearance Centerto broker royalties, this particular journal requires at least a $40 fee to copy and lend the article. Now, I am not really a copyright expert and I need to do some more research in this area, but I will assume assume that if the article is not going to be used for private study, scholarship or research. I believe this is the correct analysis and credit an excellent review of US copyright law in cultural institutions written by Peter Hirtle, Emily Hudson and Andrew T. Kenyon which helped me understand many nuances in the copyright law and libraries. It is titled "Guidelines for Digitzation for U.S. Libraries, Archives, & Museums" and was published just last year. You can find it at the Cornell eCommons: http://ecommons.cornell.edu/bitstream/1813/14142/2/Hirtle-Copyright_final_RGB_lowres-cover1.pdf (Warning: It is more like book rather than an article but if you like this stuff, I think you will enjoy it.)
But back to my original point of being stuck in a corner...
If I hit the CONTU benchmark, I am obligated to either purchase the journal, tell the patron 'no' or be a bad gatekeeper and ignore the guidelines and the law. So, why not just buy it?
In 2000, my institution paid a $100 subscription fee forJAMA.This year, we were advised that the annual online/print subscription has jumped to $845. That makes for a $745 increase in price in the last 11 years. That is a lot of money. Isn't it? And it is just one journal. I don't mean to pick on JAMA, but it is convenient to make the point that allowing journal prices to rise unfettered and to ask libraries to abide by stingy guidelines cannot possibly fulfill the spirit of Article 1, Section 8, Clause 8 of the U.S. Constitution.
And, as we all know, JAMA is small potatoes compared to other journals. I have seen price tags that exceed the cost of a good used car. Even the peer-reviewed legal periodicals have shocking prices tags for reasons many cannot understand - including me. But, it is more likely than not that many of the law related journals are included in collection plans - unlike nonlegal periodicals. If not, well, the argument is even stronger in my opinion.
I feel that without intervention, we are being backed into a corner and being forced to make decisions that benefit no one but the publishers of the journals.(VS)
I would surmise most librarians do not know about the CONTU guidelines as they pertain to the interlibrary loan of periodicals. This is troubling because innocent copying and distributing is no defense to copyright infringement. Further exasperating the problem is that most libraries rely on outside vendors for their collection software. I wonder if the software is coded to be in compliance with the § 108 restrictions on the interlibrary loaning of periodicals. For example, does the software prompt a librarian once more than 6 requests within five years from the same periodical have been reached? I would guess that question to be answered in the negative.
Posted by: CL | Feb 13, 2011 5:39:35 PM