Electronic delivery makes publishers nervous because it can facilitate additional copying by the patron (which could be infringing), but if publishers want to eliminate electronic document delivery and ILL under section 108, they’ll have to convince Congress to amend the law. In the meantime, if your library has obtained an article through ILL and you want to e-mail it to a patron, we say go ahead. Just remember the other restrictions we’ve mentioned.
While publishers wage a propaganda war against ILL, their friend the Copyright Clearance Center has introduced a fee-based service, called Get It Now, to compete with traditional ILL. Libraries that need articles from journals they don’t subscribe to can pay a fee to the CCC, in return for which the CCC will supply the library with PDFs of the requested articles.[1] The CCC’s service is licensed by publishers, who in return receive a portion of the fees.
Although we have no quarrel with libraries that wish to use this service, we are concerned that a licensing model such as this may come to replace traditional ILL, the result being a dilution of users’ rights and more expense for libraries and patrons. The danger can be seen in an article from Information Today lauding the Get It Now service; in fine print at the end of the issue, Information Today advises libraries to contact the CCC for permission if they need to make copies of the article for ILL.[2] This is nonsense. Libraries might choose to use Get It Now because of its convenience, but they don’t need the CCC’s permission to fill an ILL request.
Of course, what the courts say is more important than publishers’ guidelines. Unfortunately, we have only one appellate court decision—an old one at that—that involves library document delivery. In Williams & Wilkins Co. v. United States,[3] the U.S. Supreme Court upheld, by a four-to-four vote, a U.S. Court of Claims decision holding that large scale copying by the National Library of Medicine and the National Institute of Health was a fair use. Although the NIH copied only for their own staff, about 12% of NLM’s requests came from private or commercial organizations, drug companies in particular.
- ↑ See http://www.copyright.com/content/cc3/en/toolbar/productsAndSolutions/getitnow.html.
- ↑ Barbara Brynko, Armstrong: The Voice of Copyright, Information Today, Oct. 2011, at 1.
- ↑ 487 F.2d 1345 (Ct. Cl. 1973) (aff’d by an equally divided Court, 420 U.S. 376 (1975)).
