SCOOP: Time to Leave CONTU Behind 

Under Section 108(d) of the U.S. Copyright Act, libraries are permitted to make a copy of a journal or other serial article at the request of another library’s patron so long as that copy becomes the property of that patron for the purpose of private study, scholarship or research and that copy is accompanied by an appropriate warning of copyright regulation – a/k/a interlibrary loan (ILL). This provision is qualified by Section 108(g) that libraries are prohibited from engaging in systematic copies in “such aggregate quantities” that would serve as a substitution for a subscription to the work. Further, in Section 108(f) Congress also stipulated that fair use (Section 107) still applied.  

To help libraries interpret and apply these provisions, the U.S. House of Representatives convened the National Commission on New Technological Issues of Copyrighted Works (CONTU) to develop guidelines. The guidelines developed by CONTU placed strict arbitrary limits (“rule of five”) on the number of articles a library could request from any given journal title and suggested payment of fees when the requests exceeded that amount. Forty years later, these guidelines have not been updated or revised despite changes in technology and significant court decisions on the interpretation and application of fair use in educational and library contexts. For this reason, it’s time for libraries to stop relying upon the outdated CONTU guidelines, which have never had the force and effect of law, and revisit the original text of Section 108, as well as apply fair use when providing ILL services. 

In August 2020, the Association of Research Libraries (ARL) issued a white paper examining the history of the CONTU guidelines and the current application of fair use. The white paper’s authors state that “both the four-factor fair use analysis of Section 107 and the language of Section 108 leave flexibility for the limits of ILL activity.” They conclude the white paper with a series of recommendations to enable libraries to enact local policies and practices that fully consider the Section 108 library exception and the fair use provision of Section 107.

Those recommendations are as follows: 

1. Engage in informed discussions around modern scholarly publishing, licensing practices, interlibrary lending, and fair use jurisprudence. 
2. Considering these informed discussions, review ILL policies and procedures to make a reasoned determination of whether the quantity of ILL borrowing currently permitted by the library falls within the scope of Section 108. 
3. Analyze whether the library’s ILL transactions could also be justified under fair use. 
4. Negotiate future license agreements without reference to CONTU and instead negotiate agreements that only require compliance with copyright law. If possible, negotiate to include a fair use provision in the license agreement. 
5. CONTU should be followed only where a simpler and less flexible approach is needed by a library. 

Libraries are encouraged to read the full white paper linked above to help inform their discussions and practices. The advice of local counsel is always encouraged before adopting any policies that invoke copyright law provisions.  

The SCOOP, Scholarly COmmunication and Open Publishing, is a monthly column published to inform Atla members of recent developments, new resources, or interesting stories from the realm of scholarly communication and open access publishing.