Electronic Document Delivery
and the Interlibrary Loan Workflow
by Janet Brennan Croft
Head of Access Services
University of Oklahoma
presented at the Northwest Interlibrary Loan and Resource Sharing Conference, Portland OR, September 16-17, 2004
Abstract: What are some methods for ensuring that you don’t violate your database contracts when sending articles to other libraries via interlibrary loan? How do licenses and copyright law interact? What are some of the ways licenses approach interlibrary loan? What’s the best way to get the most out of your contracts and keep your ILL workflow efficient?
Interlibrary loan compliance with a wide range of licensing agreements can be difficult, especially when licensing clauses related to interlibrary loan and document delivery are so varied and, in some cases, so open to interpretation. With dozens of aggregator databases and a growing number of individual titles, the number of licenses the average interlibrary loan department has to comply with is skyrocketing. As electronic resources edge out paper, how can ILL departments make sure they lend only the documents they are legally permitted to lend, without losing the benefits of electronic formats because they have to devote too much staff time to ensuring compliance?
The underlying problem is this: What should constitute fair use in the electronic environment, and why should it differ from fair use of print-on-paper resources? The Copyright Act, which has governed interlibrary loan for so long, was designed to be technology-neutral. But these days, most electronic database and electronic journal subscriptions are obtained by a license, or contract, rather than outright purchase. The library does not actually own the material, but only pays for access to it. When a library purchases a book or other physical work there is no need for a contract because the library's use of the material is governed by copyright law. However, licenses pose a problem because the terms of the contract proposed by the provider trump copyright law and do not have to be in agreement with it. This is especially disturbing when these contracts prohibit activities we have long considered to be fair use. By signing such a contract, we may effectively agree to waive the fair use exceptions that our patrons expect to have.
There is little consistency between licenses – “[a] license may allow direct electronic transmission of a document; it may require the document to be printed and then scanned and transmitted by fax or email [or by Ariel]; it may permit only physical printed copies to be sent via regular mail; or it may forbid interlibrary loan altogether” (Croft and Murphy 7-8). And then there are the licenses that are not clearly written and leave the issue in some doubt, most likely because the vendor simply doesn’t understand the terminology libraries use and what interlibrary loan means.
For example, a discussion archived on the Liblicense list at Yale revealed at least one publisher’s representative who wondered if the purpose of interlibrary loan fees might be to recoup the price of the subscription to the journal (Buettiker). Publishers might easily mistake the term Document Delivery to mean a business that sells copies of articles for a profit, while libraries know that any fee charged will cover only a fraction of the administrative expenses of delivering an article. Some publishers include clauses prohibiting any “distribution” of documents from their product, which a library might interpret to mean interlibrary loan is prohibited, even if that isn’t the vendor’s intention. The clear definition of library and vendor terms would correct these misunderstandings.
It might also help publishers to know that a recent study (presented at the ALA conference in Orlando, July 2004, by Tom Sanville of OhioLink) shows that less than 0.1% of serials database use is for filling ILL requests. So what we are talking about here is really a very minor use of their resources.
This situation is unlikely to change as long as copyright practice is being developed through contracts, rather than through legislation. There will be a wide variety of interlibrary loan clauses with little standardization among them, and ILL departments will have to decide individually how they will approach compliance.
While the debate still rages on this issue, it can be tempting to try to stay out of trouble by not loaning anything electronic, and many libraries do just that. One librarian who responded to a Liblicense-L “straw poll” commented that “in practice, we do not allow ILL on e journals as verifying the license policy re ILL on each title is too time consuming” (Okerson). But libraries that list their electronic titles in the public catalog (and contribute their holdings to OCLC and the Union Lists) can’t avoid getting ILL requests for them. Systematically failing to fill these requests is, in a way, a violation of the underlying principles of interlibrary cooperation. Libraries that have the financial resources to carry items in both paper and electronic formats can avoid the issue by lending from the paper copy, but even these libraries have to face the ever-growing problem of “born-digital” items.
Fortunately, contracts are by their nature negotiable, and libraries can try to negotiate favorable contracts that satisfy the needs of their patrons. As Georgia Harper has observed, "very rarely do vendors refuse to negotiate their terms" (Harper, Acquisition 1), so it is always worthwhile to try.1
Techniques for Compliance
But while it’s best to negotiate if you can, many libraries don’t feel they have the expertise, or think they aren’t powerful enough to influence the vendor, or have to use databases purchased through a consortium that didn’t use its negotiating muscle to full advantage. In this situation, how can one deal with a hodge-podge of licensing clauses and keep track of which titles are available for interlibrary loan?
It is possible to add a note to the 500, 590, or 856 field when cataloging a serial title to indicate compliance information. It would have to be worded clearly enough that staff searching records could tell at a glance if they can lend an item or not. This has the advantage of requiring interlibrary loan staff to look in only one place to both confirm the item is owned and retrieve its call number, and to see if it can be loaned. However, this would place an enormous burden on the cataloging department (Duranceau, "Compliance"); at the University of Oklahoma, for example, the effort to place such information in the 856 field would necessitate a retrospective project involving thousands of serial records.
Another option is to create a database list of serial titles along with licensing restrictions. At MIT the Virtual Electronic Resource Access (VERA) license tracking database includes information on whether products can be used to supply ILL articles and under what conditions (Duranceau, "Tracking"). This would have to be done at the title level; database names alone would not be sufficient, because the same journal is often available from different databases under different licenses and with different years of coverage. Obviously, a major project like this, involving so many serial titles, would be a challenge to maintain. At OU, a mid-sized state university, we have over 25,000 e-journal title entries in our catalog; we only had 1,400 titles cataloged when I first looked into this issue just over three years ago. Each time an article from an electronic title is requested, this list would have to be checked for restrictions.
There are at least two commercial products now available to help track and manage licensing terms. The Innovative Interfaces Inc. automation system has developed a new module, called Electronic Resource Management, which provides a template for storing all necessary information about electronic resources, including whether ILL is allowed (http://www.iii.com/mill/digital.shtml#erm). It can be used as a stand-alone module or integrated with the rest of Innovative’s automation package. TDNet has also developed a management system for electronic journal subscriptions; their website (http://tdnet.com/) gives insufficient detail, but several libraries have mentioned their product as an option for tracking licensing clauses.
A recent question to Interlibrary Loan librarians on an ILL listserv about how they are coping with license compliance issues yielded a range of responses (ILL-L (Interlibrary Loan Online Discussion Group)). Some had plans to design an in-house database that will keep track of ILL privileges, or to purchase software that will perform a similar function. Some admitted to not planning to address the problem until the software is in place. Some do nothing to keep track of the titles they are prohibited from lending; presumably, they are choosing not to loan anything electronically. One stated that the majority of their electronic journals do not allow ILL; this was the only library responding that already has in place a “contract database”. One respondent stated no one had ever asked that ILL privileges be included in the contracts. Others said that their licensing person tries to make sure that ILL is allowed, but they do not refuse to purchase items based solely on this factor. One responded that their catalogers do not add the holdings to an OCLC “online record” if they do not have it in paper in an effort to cut down on ILL requests for that title.
Preventing the Problem: Negotiations and Model Licenses
Considering the lack of consensus about the nuts and bolt of compliance, in many ways it makes more sense to approach the problem preemptively by negotiating licenses before signing to ensure they allow interlibrary loan by some method. Many libraries and consortia have had success with this route. One librarian’s advice is “[d]o not apologize for negotiating or splitting hairs. If the publisher did not want to negotiate, they should not have had a license” (Nasea). At the University of Oklahoma, we frequently renegotiate ILL clauses to permit ILL (at a minimum by Ariel delivery, and preferably by direct electronic delivery as well), as soes our statewide consortium, and it seems an ever-increasing number of libraries are doing the same.
But is it realistic to plan to refuse to sign a contract that prohibits using the product to fill ILL requests? Georgia Harper reassures and encourages us:
These licenses are fully negotiable! Do not hesitate to ask for what you want. Vendors are willing to work with libraries to tailor their contracts to your needs. In fact, the really good news is that as more libraries ask for better terms, contracts are improving for everyone. This is the function of standard-setting. (Harper, Just Sign It)
And from the other side of the bargaining table, a license negotiator for a major database producer says, "we are happy to accommodate all reasonable requests" (Lawrence, 150).
What exactly are librarians asking for when we say we want to be able to use our electronic resources to fill interlibrary loan requests? As librarians, we do have our selfish motives—we desire procedures that don't involve extra work or expense for the interlibrary loan staff on either end of a transaction, we want consistent and easy-to-understand contracts, and we’d like vendors to understand both the way interlibrary loan functions and the laws and regulations which already apply to us.
But what's much more important to us is providing what our users need. For the ILL patron, the procedure needs to be transparent—ideally, whether the item originated as print or pixels should make no difference as far as the service the patron receives and the legal rights he has to use the item. The patron, and his library, do not want to be preemptively limited by contract clauses that treat us as if we were potential criminals out to steal profits from the copyright holder. Instead, we want to be treated as ethical human beings willing to make a good-faith effort to stay within the law or the terms of a reasonable contract. As Laura Gasaway cautions,
Most librarians are law-abiding citizens who want to comply with the copyright law. Unrealistic restrictions [and] outright denial of use . . . on the part of publishers may discourage compliance. (Gasaway 131)
There may be some suppliers who refuse to negotiate their terms. Is it a disservice to your patrons to refuse to subscribe to these resources? It is a problem which must be judged on a case-by-case basis. In the short run, this can delay your patron’s work while you attempt to obtain the item elsewhere. In the long run this is good for all libraries and their patrons, as it forces publishers to acknowledge our needs or lose our business. As Lesley Ellen Harris states, "If you cannot obtain the access you need for your patrons, then the electronic product loses much of its value to you" (Harris, 28), and in the interlibrary loan field one must apply this to patrons from other libraries as well as one's own local patrons.
One technique helpful for librarians who wish to renegotiate aspects of publisher contracts is to use model licenses as a template for rewording unacceptable ILL clauses. A model license is “an idealized version of a licensing contract, which gives both librarians and vendors a basis for evaluating and negotiating contracts that will be fair and profitable for all parties” (Croft). It is a tool used to “minimize the legal complexity” of negotiations (Cox). The clauses are listed in a standard, well-organized format; legal and library terms are explicitly defined; and the obligations of the both parties are described clearly. Some model licenses include alternate options under each clause, to allow customization of the contract for specialized situations.
A model license gives a library a template for negotiating a favorable contract point-by-point with a vendor. It protects the vendor by clearly defining what the library plans to do with the product, and can also benefit both parties by eliminating unenforceable clauses. A library may use a license verbatim, or use parts of it to negotiate replacement clauses in existing vendor licenses. A model license can also be used as a checklist to evaluate vendor licenses clause-by-clause. A library may even choose to use existing model licenses as a basis for developing its own model license, suited to its particular needs, for use with all vendors it deals with.
Renegotiations are obviously widespread and even expected by the publishers, but many providers try to include clauses saying that all negotiations must be kept confidential. By keeping this information secret, publishers try to prevent libraries from comparing notes about their contracts. This appears to be in the best financial interest of the publishers, because theoretically, the more restrictive the license, the more libraries will have to subscribe in order to have access to their publications. But in reality, libraries often reject licenses that are too restrictive, and the publisher can get a bad reputation in the library community. Having library-friendly licenses and being known for flexibility and adaptability to library needs might be a better profit-making strategy for the long run.
Several model licenses are now available to libraries for free use. The suite of licenses designed by John Cox Associates has models for single academic institutions, academic consortia, public libraries, and corporate and special libraries, and it offers wording for three levels of ILL services (Licensingmodels.Com). The Liblicense Standard Licensing Agreement is designed to be used by university libraries negotiating with academic publishers (LIBLICENSE: Licensing Digital Information: A Resource for Librarians). A number of other model licenses are listed on the Liblicense-L web site.
Trying to comply with a wide variety of different ILL clauses is a difficult task for interlibrary loan staff. Many libraries do not even bother to try to comply – they avoid the problem by not lending electronic material. But if we as a profession are committed to getting publishers to understand and support fair use in the electronic environment, this is not in our best interest.
In the end, each library must decide whether it will take a purely proactive approach and make permission to use the resource for ILL a deal-breaker, or weigh the benefit of local access to the material against both the practical problems of managing differing ILL clauses from different publishers, and the philosophical problems of restricting access to material against established fair use protocols applied to other media.
Publishers need to be reminded that copyright was originally meant not to defend an author’s monopoly on a work, but to balance the needs of authors and the needs of the public and therefore “promote the Progress of Science and useful Arts” (Hilton). It will be better for all our users if we stand firm about defining and negotiating fair use of electronic material, while pushing for supporting legislation. As librarians we need to remember and communicate that “[f]air use is an essential component of copyright law and should be a cherished personal liberty” (Hilton).
Notes
This presentation is based primarily on material from Croft and Murphy, below, with additional information from my 2004 ALA presentation License to Fill: What do Libraries Want?, my forthcoming book Legal Solutions in Electronic Reserves and the Electronic Delivery of Interlibrary Loan (Haworth, October 2004), my forthcoming article “Interlibrary Loan and Licensing: Tools for Proactive Contract Management” (Journal of Library Administration), and my 2001 article “Model Licenses and Interlibrary Loan/ Document Delivery from Electronic Resources.”
1. The model licenses at http://www.licensingmodels.com/ provide sample clauses and definitions that can help libraries to rewrite licenses to allow interlibrary loan, electronic reserves, and other uses (see Brennan, Hersey and Harper; Croft for additional advice on negotiating licenses).
Works Cited
Brennan, Patricia, Karen Hersey, and Georgia Harper. Licensing Electronic Resources: Strategic and Practical Considerations for Licensing Electronic Information Delivery Agreements. 23 July 2002. Association of Research Libraries. Available: http://arl.cni.org/scomm/licensing/licbooklet.html. 15 September 2003.
Buettiker, S. M. Re: Electronic Journals Ccc. 2001. Liblicense-L Archives. Available: http://www.library.yale.edu/~llicense/ListArchives/0105/msg00002.html. 14 September 2004.
Cox, John. "Model Generic Licenses: Cooperation and Competition." Serials Review 26.1 (2000): 3-9.
Croft, Janet Brennan. "Model Licenses and Interlibrary Loan/ Document Delivery from Electronic Resources." Interlending and Document Delivery 29.4 (2001): 165-68.
Croft, Janet Brennan, and Molly Murphy. "Licensing and the Interlibrary Loan Workflow." Journal of Access Services 1.2 (2002): 5-14.
Duranceau, Ellen Finnie. "License Compliance." Serials Review 26.1 (2000): 53-58.
---. "License Tracking at MIT Libraries." Serials Review 26.3 (2000): 69-73.
Gasaway, Laura N. "Copyright Considerations for Electronic Reserves." Managing Electronic Reserves. Ed. Jeff Rosedale. Chicago: American Library Association, 2002. 109-35.
Harper, Georgia. Acquisition under Contract. 6 February 2003. University of Texas. Available: http://www.utsystem.edu/ogc/intellectualproperty/l-cntrct.htm. 29 August 2003.
---. "Just Sign It and Send It Back": And Why Not? 28 August 2001. University of Texas. Available: http://www.utsystem.edu/ogc/intellectualproperty/justsign.htm. 10 October 2003.
Harris, Lesley Ellen. Licensing Digital Content: A Practical Guide for Librarians. Chicago: American Library Association, 2002.
Hilton, James. "Copyright Assumptions and Challenges." Educause Review 36.6 (2001): 48-55.
ILL-L (Interlibrary Loan Online Discussion Group). 2001. discussion thread, not archived. November 2001.
Lawrence, Eileen. "Licensing: A Publisher's Perspective." The Serials Librarian 38.1/2 (2000): 147-53.
LIBLICENSE: Licensing Digital Information: A Resource for Librarians. 2000. Web site. Yale University Library, Council on Library and Information Resources. Available: http://www.library.yale.edu/~llicense/. November 14, 2001.
Licensingmodels.Com. 00/4/14 2000. Web site. John Cox Associates. Available: http://www.licensingmodels.com/. November 14, 2001.
Nasea, Melissa. "The Joy of License Negotiation: Having Fun and Being Careful." Library Collections, Acquisitions, and Technical Services 24.3 (2000): 436-39.
Okerson, Ann. Results of Straw Poll on ILL. 2000 1997. Web site. Libliscense-L. Available: http://www.library.yale.edu/~llicense/straw.html. November 15, 2001.