Moving Beyond CONTU

Laura Quilter, UMass Amherst

• 1976 Copyright Act
• 1974-1978, CONTU - initial publication 1976, final report 1978
• Increasing grumblings over the next decades
• 2017-2018 Ohio State & Georgetown separately working on their policies; Meg Oakley memo on background of CONTU & economic rationales
• 2020 ARL white paper published.

How did we get CONTU anyway?

1976 Copyright Act - incorporated fair use, Section 108

• A series of side negotiations to develop “guidelines” → CONTU, classroom guidelines, etc. (1974 convened; 1976 first pass at ILL guidelines; 1978 final report)
• CONTU (Commission on New Technological Uses) guidelines were a relatively small group of insiders, with not a lot of library review
• These were NOT law: They were industry-developed guidelines. Courts have not examined ILL guidelines but have looked at other related guidelines & held they do not have force of law.

Key Points:

• “Substitute for a subscription or purchase” – rule of 5 articles, copied, from within most recent 5 years …. Based on economics of journal publishing in mid-1970s.
• Intended to be revised within 5 years.

What is the law?

• US Copyright Act, Title 17 of the United States Code
• Sections 101, 102, 106 establish the basics of the rights, the types of works covered
• Sections 107 - 121 are EXCEPTIONS and LIMITATIONS
• Section 107 - fair use. Court-developed doctrine since 1800s; Congressional imprimatur in the 1976 Copyright Act.
• Section 108 - library exceptions. Photocopying & ILL were key concerns. These were safe harbor “carve outs” to make things clear & take them out of litigation.
• 108(f) “Nothing in this section …. (4) in any way affects the right of fair use as provided by section 107”

17 USC 108 - library reproductions

17 U.S. Code § 108 - Limitations on exclusive rights: Reproduction by libraries and archives

1. General conditions - nonprofit, open to public, notice
2. Copies of unpublished works for preservation or research
3. Copies of published works for replacement, damage, lost, stolen, etc.
4. ILL
5. Copy of whole work via ILL if “cannot be obtained at a fair price”
6. No liability for (1)-(2) reproducing equipment, (3) TV news archiving, (4) “Nothing in this section …. in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections.”
7. More conditions on ILL: “�(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—� (1) is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group; or � (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 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.”
8. Reproductions & distributions in last 20 years of copyright
9. Restrictions & limitations based on various media … “The rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except that no such limitation shall apply with respect to rights granted by subsections (b), (c), and (h), or with respect to pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections (d) and (e).”

17 USC 108 - library reproductions

17 U.S. Code § 108 - Limitations on exclusive rights: Reproduction by libraries and archives

• No liability for (1)-(2) reproducing equipment, (3) TV news archiving, (4) “Nothing in this section …. in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections.”
• More conditions on ILL: “(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—� (1) is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group; or � (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 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.”

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17 USC 107 - fair use

17 U.S. Code § 107 - Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

ARL recommendations

1. Informed discussion of journal subscriptions, licensing practices, & ILL
2. Borrowing libraries should review policies & procedures to determine what “aggregate quantities as to substitute for a subscription to or purchase of such work.” Consider:
1. # of borrowing requests for particular titles, #s per year, overall trends
2. # of local patrons making requests
3. Frequency / pattern of requests within a year & across years
4. Subscription list price & short-term licensing prices
5. Patron recommendations / requests for purchase / subscription
6. Publisher rejections / turn-aways
3. Consider 107 as well as 108
4. Lending library language should reference “compliance with copyright law” not “compliance with CONTU”
5. CONTU continues to be a potential standard one can adopt if one wants