CRIV CONNECTION

We probably all know the frustration of not having immediate access to information that a user requests. We do all the things a librarian does to find the item in our organization’s information resources, on the open web, and through document delivery services or interlibrary loan. Then we might phone a friend, ask a vendor if they can help us out this one time, and we calculate the cost-benefit of adding a resource if potential use warrants it. Often, the need for a source truly is limited—a one-time request associated with a particular client-matter, a research project, or cite verification. In those instances, borrowing and lending via interlibrary loan should be much easier than they are for us legal information professionals.

The AALL Principles & Practices for Licensing Electronic Resources notes that:

A license agreement should support the practice of Interlibrary Loan (ILL) of digital resources. Using electronic, paper, or intermediated means, the licensee may fulfill ILL requests from other institutions. Licensee agrees to fulfill such requests in compliance with Section 108 of the U.S. Copyright Act (17 U.S.C. 108).

(AALL Principles & Practices for Licensing Electronic Resources, Section IV, Practice #2 and the accompanying checklist)

However, many of our license agreements for legal information resources include clauses that expressly disallow interlibrary loan or otherwise restrict reuse and other content sharing. You may see restrictions or permitted uses language like this:

• The user may reproduce limited quantities of the data for internal or interoffice distribution or use only.
• Permission is required for any external distribution.
• We hereby grant you a non-exclusive, non-transferable right to access, view, and use our services and content solely for your own internal business purposes.
• You may not allow any third parties to access, use, or benefit from our property in any way.
• You may not copy, modify, reproduce, republish, distribute, display, or transmit for commercial, nonprofit, or public purposes all or any portion of this site.

Other agreements are more accommodating or have been negotiated more favorably for the library and its users, addressing interlibrary loan and digital rights with language like: “Licensees may fulfill such requests via secure means provided that such use is not at a volume that would substitute for a subscription.” This more permissive approach echoes the ALA RUSA Interlibrary Loan Code for the United States and IFLA’s Guidelines for Best Practice in Interlibrary Loan and Document Delivery. The ILL Code, importantly, urges terms and conditions that accommodate reasonable use for interlibrary loan purposes as well as education for and compliance by staff handling requests.

Despite the restrictive examples above, a license agreement is a negotiated document, so legal information professionals can address professional courtesies like minimal distribution of limited content to clients and other libraries before executing an agreement if that’s important to their organization. Once an agreement is negotiated, it’s critical that interlibrary loan, document delivery, and research or reference services personnel are aware of licensing terms and conditions that affect their work.

It’s in our nature professionally to meet information requests and to support our colleagues, but a binding contract may restrict us from helping in that way. When we copy and distribute licensed content in a way that’s clearly prohibited by a contract, we are creating a liability for our organization. It’s better to discuss anticipated needs with the vendor before entering into an agreement, referencing the AALL Principles and Practices. A provision for interlibrary loan with some reasonable constraints might be mutually agreeable. There is the potential for middle ground between wholly prohibiting all manner of external distribution and leaving the candy shop doors wide open.