RE: Question regarding ILL

["John Cox" <John.E.Cox@btinternet.com>]

Inter-library loan is really not the issue.  Fair use is the issue.  If
the loan is covered by fair use then no permission or fee is required. If
the use to which the loaned item is put does not meet the four tests under
the Copyright Act 1976, as amended, then it may constitute a breach of
copyright.  Those four tests are imprecise, but collectively mean that use
for non-commercial educational purposes is allowed.

There is nothing to prevent a publisher and a library agreeing on terms
and conditions governing inter-library loan that clarify the precise
purposes for which such loans may be transacted without further
permission.  They may restrict or extend the rights under the Act.  The
copyright law is essentially a default mechanism in this respect.

Fair use probably does not cover a loan to a commercial entity like a
pharmaceutical company.  Instead of relying on vague definitions in the
law, the license "a contract between publisher and library" can clarify
exactly in what circumstances a loan may be made under fair use conditions
-- i.e. without prior permission or fee.

The law allows two parties to vary their rights as between them by
contract, as long as such agreement is not criminal or otherwise illegal.  
This is true in the USA as much as it is in the UK.  Licenses can make
clear and precise what is vague in the legislation.

John Cox
Managing Director
John Cox Associates Ltd
Rookwood, Bradden
TOWCESTER, Northants NN12 8ED
United Kingdom
Tel: +44 (0) 1327 860949
Fax: +44 (0) 1327 861184
E-mail: John.E.Cox@btinternet.com 
Web: www.johncoxassociates.com 

-----Original Message-----
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Rich Dodenhoff
Sent: 27 January 2005 22:14
To: liblicense-l@lists.yale.edu
Subject: RE: Question regarding ILL

Maybe I'm just na�ve, but if ILL is allowed under U.S. Copyright Law, how
can publishers refuse to allow libraries in the U.S. to provide ILL?  
It's guaranteed under the law.  Doesn't that make the barring of ILL
illegal?

Richard Dodenhoff
Journals Director
American Society for Pharmacology and
  Experimental Therapeutics
9650 Rockville Pike
Bethesda, MD 20814-3995
301.634.7997 (p) / 301.634.7061 (f)