The Virtual Library of Virginia

VIVA's Statement of Support for the VLA Amendment to UCITA

(submitted to the JCOTS Advisory Committee #5 on November 9, 2000)

THE PROPOSED AMENDMENT TO CHAPTER 43,
SECTION 59.1-501.5 OF TITLE 59.1 OF THE CODE OF VIRGINIA
(UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT)

In Section 59.1-501.5, add the following new subsection (f):
(f) (1) No standard form license shall prohibit a non-profit library, archive, or educational institution from engaging in circulation, course reserves, and inter-library or other lending services; classroom and instructional uses; or archiving and preservation, to the extent these activities are permitted under (i) 17 U.S.C. Section 107 (Limitations on Exclusive Rights: Fair Use);
(ii) 17 U.S.C. Section 108 (Limitation on exclusive rights: Reproduction by libraries and archives);
(iii) 17 U.S.C. Section 109 (Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord); and
(iv) 17 U.S.C. Sections 110(1) and (2) (Limitations on exclusive rights: Exemption of certain performances and displays).
(2) A term in a standard form license which attempts to prohibit any activity permitted under subsection (f)(1) shall be unenforceable unless such activity is prohibited by other law.
(3) Nothing in subsection (f)(1) shall permit a non-profit library, archive, or educational institution to engage in the online distribution of computer programs or any other activity not permitted by subsection (f)(1).

VIVA SUPPORTS THIS PROPOSED AMENDMENT because it protects basic and essential library services for VIVA members. This amendment maintains protections currently in the U.S. Code for non-profit educational organizations and allows libraries to continue traditional library services to the extent these activities are already permitted under the U.S. Code, particularly the Copyright Act.

ABOUT VIVA: The Virtual Library of Virginia (VIVA) is the consortium of the Commonwealth of Virginia's non-profit academic libraries serving higher education. Members include all 39 state-assisted colleges and universities and 32 independent non-profit colleges and universities. VIVA's mission is to provide, in an equitable, cooperative and cost-effective manner, enhanced access to library and information resources for the Commonwealth of Virginia's academic libraries. VIVA receives significant funding from the General Assembly as well as from local institutional support and outside grants. The total budget from all sources for this fiscal year is $5.3 million.

VIVA will spend by far the largest proportion (nearly 90%) of its budget this year on negotiated contracts for electronic subscriptions. Although highly valued by students and faculty, these negotiated contracts for electronic resources represent only a part of the academic library resources that VIVA makes available to these users. Equally important for the success of student learning and faculty teaching and research is access to the printed books and journals collected by VIVA libraries. The proposed amendment is essential to maintaining the basic library services we provide to students and faculty from these printed collections.

The 6 public doctoral institutions in Virginia by themselves have over 11 million bound volumes; other colleges and universities add millions more. An increasing number of these print materials come to libraries with digital materials included (for example, books with CD-ROMs). Boxes of these materials arrive at library loading docks every day and are opened by clerks (not attorneys). Processing these materials is both costly and time-consuming. Once they get on the shelves, libraries need to make the most effective use of taxpayer investments in these materials by providing basic library services with them, not spending more money in processing them. Without amendment, UCITA will significantly increase the costs of processing, since libraries will have to implement significant new procedures to ensure compliance with UCITA provisions.

Because there was at least one major misstatement about librarians and library services at a recent committee hearing, it seems useful to summarize a few basic concepts about interlibrary loan in general and library services in the emerging digital age.

1. Interlibrary loan is not a new phenomenon and is not a threat to American commerce. In fact, Interlibrary Loan has been an essential research tool for academic libraries for over a hundred years. Librarians are very careful to follow the copyright laws in interlibrary loan and will continue to do so.

2. No library in the entire country is able to PURCHASE all of the books and journals needed to support their users. Even the U.S. Library of Congress has an Interlibrary Loan office and borrows books from other libraries to augment even their vast holdings. Why?

• Many books are out of print and are no longer available.

• Research areas change and new ones can't always be predicted.

• Libraries collect different things to meet their local needs, so there is surprisingly little overlap in titles held, particularly among academic libraries.

• An overwhelming number of books are being published! In fact, more books are published now than at any time in history, and the pace is picking up. The U.S. publishing industry book sales in 1999 were $24 billion, an increase of 4.3% from 1998.

• Library budgets are very limited. Libraries are buying a smaller and smaller fraction of the increased output because budgets are constrained. Nearly all of the library budgets of the State-assisted colleges and universities have been unchanged since 1994, while the book publishing industry has increased its output by over 30%. In addition, libraries have seen cost increases averaging 9% for their scholarly journal subscriptions. The highest cost increases, greater than 11% each year, have been in the science, medicine, and technology subject areas, all critically important to Virginia's economic development.

3. The need for interlibrary lending in Virginia will continue in the future. VIVA statistics show that within Virginia, interlibrary lending of books among the public colleges and universities alone during the past 5 years has increased by over 31%. Libraries would like to reduce that volume by providing students and faculty with materials from their own libraries. But with limited budgets, increased journal subscription costs, and the increased number of books being published, interlibrary loan will continue to be central to the teaching, learning, and research missions of VIVA institutions.


For these reasons, interlibrary lending is becoming an increasingly important way to maximize the benefit of taxpayer dollars in buying scholarly books.

Without this amendment, UCITA could require Virginia's college and university libraries to restrict (rather than to enhance) access to essential library and information resources. By protecting the ability of VIVA institutions to provide basic services historically supported by legislation and practice for over 100 years, this amendment supports VIVA's efforts to avoid duplication of resources, to increase productivity, to utilize technology, to support the Commonwealth's distance education programs, and to provide cost-effective resources for the Commonwealth's higher education community.

VIVA Steering Committee: Chair: LeRoy Strohl, III (Mary Washington College).
Ralph Alberico (James Madison University); Gene Damon (Virginia Community College System);
Eileen Hitchingham (Virginia Polytechnic Institute and State University);
John Jaffe (Sweet Briar College); Jean Major (Old Dominion University);
Connie Kearns McCarthy (College of William and Mary); Frank Moran (Blue Ridge Community College);
Donald Samdahl (Virginia Military Institute); John Ulmschneider (Virginia Commonwealth University);
Karin Wittenborg (University of Virginia); John Zenelis (George Mason University).
Ex Officio: Calvin Boyer (Longwood College/LAC Chair); Donna Brodd (SCHEV); Katherine Perry (VIVA Director).

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Contact: Kathy Perry, (George Mason University) VIVA Director.
Posted 11/10/00. Last updated: 2/12/2001