Page:The librarian's copyright companion, by James S. Heller, Paul Hellyer, Benjamin J. Keele, 2012.djvu/101

Chapter Five. The Library Exemption (Section 108) In addition to the four requirements imposed by section 108(d), remember the rule in 108(a)(1) against copying or distributing for a direct or indirect commercial purpose. As we explained earlier in this chapter, profit-making document delivery services are not compatible with section 108. Another taboo is “systematic” copying, which 1s prohibited by section 108(g), and which we’ll discuss later in this chapter.

Because there are many copyright pitfalls when it comes to ILL and document delivery, we’ve prepared some guidelines to help you navigate this difficult terrain. But first, let’s discuss what publishers and the courts have to say.

The publishing industry has weighed in on document delivery and ILL. As one would expect, they take a restrictive view of these practices. The Association of American Publishers has written that the activities of “fee-based and technology-enhanced copying and distribution services of libraries … are indistinguishable in purpose and effect from those of commercial document delivery suppliers.” We don’t agree. Nothing in section 108 bars a library from charging fees to recover the cost of document delivery and interlibrary loan. Section 108 merely excludes commercial activity. A commercial document delivery supplier is indeed distinguishable from a library engaged in nonprofit, fee-based interlibrary loan and document delivery services.

The AAP’s statement seems modest compared to the document delivery guidelines released in 2011 by the International Association of Scientific, Technical & Medical Publishers (STM). STM advises limiting ILL and document delivery to print documents, and only to on-site patrons. STM characterizes this proposal as a “good compromise” between libraries and publishers; we would characterize it as overreaching on the part of STM. Section 108 clearly allows ILL and document delivery, and STM’s acknowledgement of this fact does not amount to a compromise. Although section 108 was originally drafted in the pre-digital era, it doesn’t bar the electronic delivery of documents.