Revisiting CONTU Guidelines in 2020

Recommended Reading

For libraries, roles as well as resources have changed dramatically over the course of the past 45 years. In 1976, the Commission on New Technological Uses of Copyrighted Works (CONTU) did not anticipate the capability for shared dissemination with the speed now managed via the Web, tweets and SciHub.

Released this week, an ARL white paper entitled Modern Interlibrary Loan Practices: Moving beyond the CONTU Guidelines represents a realistic consideration of resource-sharing practices and beliefs held by libraries in today’s world.  Written by Meg Oakley, Director, Copyright and Scholarly Communication, Georgetown University, Laura Quilter, Copyright and Information Policy Librarian, University of Massachusetts Amherst, and Sara Benson, Copyright Librarian and Assistant Professor, University of Illinois at Urbana Champaign, the report recommends adaptation of library practice in providing patron access to content that may not be held in a single institutional collection.

One of the most well-known elements of the CONTU guidelines is the so-called “Rule of Five” that provided parameters for decision-making in determining whether a library had an obligation to subscribe to a publication if more than 5 patrons requested articles from that publication within a specific time frame. As the ARL blog post announcing the report release noted, that “Rule” was “premised on such historical data as average annual subscription costs ranging from $13 to $108, depending on discipline, and copyright fees around $1.25 per article. The rule of five, for instance, was developed with the understanding that “[a] typical crossover point for the add/drop decision is four or five uses per journal title per year…with a subscription price of forty dollars and external lending fees of eight dollars.” By 1997, subscription prices for newsletters could be ten times that $40 amount and journal prices much higher than those of newsletters.

The authors of the 43-page white paper include a segment on the statutory authority for interlibrary loan, as framed by Sections 107 and 108 of the Copyright Act.  This is followed by a more detailed examination of the CONTU Guidelines, a history of their development and a reasonably framed discussion of why the guidelines are no longer useful. While the report suggests that it be used primarily as a means of opening informed discussions about subscriptions, licensing practices and interlibrary lending, one key recommendation from the report is this:

Lending libraries should negotiate license agreements without language referencing CONTU. Instead, libraries should negotiate for an agreement with an ILL provision that requires only compliance with copyright law, not CONTU. 

The full text of ARL’s announcement, containing a link to the report, may be found here.