copyright law and interlibrary loan - what's up?
Here we briefly explain what you should bear in mind when sending copies for interlibrary loan. The basis for this is in particular the version of § 60e UrhG.
The simple case
§ 60e (5) reads:
"Libraries may transmit copies of up to 10 percent of a published work as well as individual contributions published in professional journals or scientific journals to users for non-commercial purposes on individual order.
§ Section 60g (1) protects the exercise of these rights:
"The right holder may not invoke agreements which restrict or prohibit permitted uses in accordance with §§ 60a to 60f to the detriment of the authorised users.
However, § 60g (2) somewhat restricts this protection if the libraries have concluded agreements exclusively for the dispatch of individual orders (reservation of contract):
"(2) Agreements which have as their sole object the provision of access to terminals in accordance with § 60e paragraph 4 and § 60f paragraph 1 or the dispatch of copies on individual order in accordance with § 60e paragraph 5 shall, in deviation from paragraph 1, take precedence over legal permission.
This allows rights holders to conclude special agreements with libraries which restrict the legal permission for dispatch to individual orders.
It may therefore be the case that the scope or quality of the reproductions offered is limited compared to what is possible under $60e (5).
The transitional provision in §137o is problematic:
"§ 60g does not apply to contracts concluded before March 1, 2018."
Thus, the provisions on the dispatch of copies in old contracts with libraries, if they exist, continue to apply. However, this is no longer the case for new contracts.
An evaluation
The amendment of 2017 has concretized and simplified the rules. The restrictions on fax quality and scanned content have been eliminated.
But: This does not apply to deliveries based on contracts before 1.3.2018 and also not to those offering services such as Subito (have their own contracts with the rights holders).
...and an outlook
Over time, the old contracts will expire and their restrictions will cease to apply.
It is up to the actors from science and society to decide whether knowledge produced in the long term with public funds can be transferred to the exclusive access of commercially oriented exploiters, who will sell such knowledge to the public at a high price under the protection of copyright which is at least misused as they feel. The new rules already make it easier than before.
However, at the instigation of the rights owner lobby, the new rights in §60a to §60h in §142 have been limited to March 1, 2023. The Federal Government must report in addition to the Bundestag up to 1. March 2021. It is to be hoped that the legislator will repeal § 142 (2) as a result of the report.
The publications in Open Access journals funded by the EU, the DFG and our Helmholtz Association will make the problem of paid access less relevant in the future. Negotiations with the major publishers to transform their journals into Open Access journals (DEAL project) will also make it smaller.