Chapter Five. The Library Exemption (Section 108)
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Example 4
The requesting library does not include any attestation.
- Comment: Just say no.
- The requesting library should keep records of its document delivery requests for three full calendar years, plus the current year.
Example 5
Your interlibrary loan clerk read the USA Patriot Act[1] and is concerned about privacy. She wants to discard all borrowing records more than three months old.
- Comment: The ALA notes that ILL transactions are confidential library records, but that including a user’s name on an ILL request does not violate their Interlibrary Loan Code.[2] To monitor requests, we suggest that libraries record (1) the date of the request; (2) the title and author of the article; and (3) the title of the journal, its volume number, and the publication date. Three full calendar years plus the current year means just that: Keep records for the entire time period.
- The Patriot Act treats library records, including borrowing transactions, as business records that must be disclosed to law enforcement officials who present a subpoena or search warrant from a duly authorized court as part of a criminal investigation. After an ILL transaction has been completed, libraries may want to delete from their records the name of the person who requested the item.
- In the end, there is no exact answer as to how much copying is permitted under section 108. Even non-profit academic libraries that arguably have “gold club” status cannot make copies for faculty or students, or use document delivery, in quantities such that the copying substitutes for needed subscriptions or purchases. Because section 108 really is a fair use—like provision that permits a library to, in effect, act as an agent for the person who needs a copy, the answer to the question “How much may I copy?” depends on the facts.
- So here you are, in the gray zone. What is the bottom line when your library receives a request from a library patron—a teacher, a judge, a corporate CEO, whomever—and are unsure whether the use is permitted under section 108 or as a fair use? If you thought about this a lot and still think it is a close call, you may recall that the primary purpose of copyright is not to reward copyright owners but instead to enhance knowledge and promote the creation of other works. Just say yes.
