Copyright and Reserves

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  • We are seeing a trend in publishers adding what appears to be“consumable” content to the end of chapters in what would otherwise be classified as a “textbook”. Perhaps they are doing this to reduce cost, and combine a textbook and a workbook into one book? Whatever their reason, I have noticed many textbooks coming through that seem to have this combination.

    We are having trouble trying to decide if these are questionable for reserves use because of their appearance as a "consumable". In some textbook titles, almost the entire book has fill in the blank type exercises or else multiple question quizzes as the main content of the chapter; however, the book is not spiral bound or perforated for tearing pages out (like workbooks have been published in the past)

    Has anyone else encountered this situation, and if so, what is your policy concerning accepting these items for reserves? My institution is in the process of revising our reserve policies, are we are just a little perplexed by the change in these materials.

    Thanks. All feedback will be greatly appreciated.
  • I have not encountered this type of material.

    I need to think about this, but here are my preliminary thoughts.

    First, I don't think that fill-in-the-blank questions necessarily make a product a consumable. You can write the answers on a sheet of loose-leaf paper or answer verbally in class. What makes fill-in-the-blank questions consumable is that they are on sheets that are intendend to be turned in to the teacher. So, unless the pages are intended to be removed, I don't think you have a consumable regardless of what the content is.

    Since consumable can only be consumed once, they have no value to multiple users unless systematically photocopied and don't belong on reserve. However, textbooks with consumable content have significant value to multiple users without photocopying.

    I'd probably confirm that the teacher expects the students to use the non-consumable content. If that's true, I'd probably put the item on reserve. However if a teacher wants a book on reserve purely for the consumable content, then I would refuse.

    I'll give this some more thought.
  • If you are talking about putting the commercially-purchased copy of the textbook that is owned by the library on reserve, I do not see any problem. That situation is covered by the first-sale doctrine, which says that the copyright owner's exclusive control over distribution is exhusted in regard to an individual copy once that copy is sold. So the purchased copy can be re-sold, lent, rented or destroyed (with some exceptions not applicable here), at the will of the owner. No authorization is required for library reserve use of any such material.

    The problem, as AFry points out, is practical, not legal -- if multiple people are expected to use the consumable portion of the text, putting it on reserve is not a satisfactory way for this to happen.

    The restriction on use of consumable materials like workbooks is found in the Classroom Photocopying Guidelines that were agreed upon, with some strong dissent, in 1976. Ignoring, for the moment, the fact that these guidelines are not legally binding, they refer only to copying done by the institution. If you want to put photocopies of the consumable material on reserve or scan it into electronic reserves, you run afoul of these guidelines (and you would have a very weak fair use argument). But simply putting the legally-obtained original copy on "physical" reserve raises no such problems.
  • It's interesting that I've seen this type of question- that is, the legality of putting something on reserve- in a few different venues recently.

    As ksmith notes, the first sale doctrine will allow you to place the original material on reserve without permission from the copyright holder. It's when you want to make copies to put on reserve that requires additional analysis.
  • I didn't explain my concern very well.

    As ksmith and COvalle point out, the issue about photocopying.

    ksmith correctly points out that the consumable restriction is from the Guidelines. I hate the Guidelines. When I make a decision about reserves, I don't care one bit about what the Guidelines say.

    When I make a decision about reserves, I use fair use. As ksmith points out, "If you want to put photocopies of the consumable material on would have a very weak fair use argument."

    Here's my concern. A consumable has no value on reserve unless photocopied. Therefore, if I put a consumable on reserve, I know that it will be photocopied. What's the difference between a librarian making photocopies and a librarian knowingly creating a situation in which students must make photocopies?
  • The difference is section 108(f)(1), which absolves librarians of liability for unsupervised copying done by patrons if we display that little copyright notice we all use. Knowledge that another person is likely to infringe does not, by itself, create secondary liability, and the 108(f)(1) provision strengthens our protection by making clear that we do not have the element of control that is necessary to establish such exposure.

    As for the guidelines, all I can say is Bravo, AFry! You are part of what is, I am afraid, a courageous minority.
  • Thanks for the compliment, ksmith.

    I've given this issue some more thought, but I haven't really changed much.

    Here's what I'd do.
    1. Determine if the product is primarily a consumable or primarily a non-consumable.
    2. Put all primarily non-consumable material on reserve. Do not put any primarily non-consumable material on reserve.

    For me, my refusal would be for moral rather than legal reasons. Regardless of the legality, if I know that the material will be consumed, I would feel guilty if I facilitated the systematic photocopying of that material.
  • While I have no intention of impugning your ethical stance here, two considerations make me wonder how useful the distinction between consumables and non-consumables is.

    First, don't we pretty much know that anything we put on reserve is going to be photocopied? In my experience, students don't read even pure text (or especially pure text) in the library, they copy it to take home and procrastinate over. So why does the content of the page matter when a copy is being made either way?

    Second, doesn't the same logic apply to even normal circulation of "consumables"? Should we refuse to circulate a textbook at all if it has "fill in the blank" questions after each chapter? Given the ease and ubiquity of photocopying, the mere difference in the time the patron has the material in hand does not seem to make much difference; I doubt that the argument that a student with 4 weeks to hold the book is less likely to photocopy it than if she has 3 hours actually reflects reality. More likely in the former case, the student will wait until the book is overdue, then photocopy the parts she needs before returning it. And in either case, the librarian does not control the decision.

    Putting aside my cynical attitude about students' use of library resources; I think it is a slippery slope when we start deciding about circulation rules based on the content of the item. Unless, of course, we are making the decision for preservation purposes -- this seems to me to be the strongest argument for a different circultation status, but it probably supports keeping the consumable on closed reserve where we can keep an eye on it and see that it is photocopied, rather than written in directly while in the student's possession.
  • While I have no intention of impugning your ethical stance here
    If you are worried about offending me, don't worry. I completely understand. In fact, I think these kind of discussions are really productive because they reinforce the fact that many copyright issues aren't black and white.
    First, don't we pretty much know that anything we put on reserve is going to be photocopied?
    So why does the content of the page matter when a copy is being made either way?
    To me, the key issue isn't whether or not students are making copies but whether or not I am forcing them to make copies. Text can be used by mutliple students without photocopying, but a consumable can only be used by one student unless photocopied. If the copier is broken, students will reluctantly read the text on site but will either steal the consumable or do without. Here's a related scenario that doesn't involve consumables. Let's say two students who walk in after class and photocopy a book chapter so that one student doesn't have to wait an hour. I have no problem with this. They could read it one-at-a-time. If no copier is present, they would read it one-at-a-time. But what if a huge class needs to read the same book chapter in the first week of class. I'm talking about demand so high that I need to get students to take a number and wait forever or schedule an appointment. In this case, I am forcing them to photocopy. I would resolve this issue by buying enough copies to meet the demand. Not one per student, just enough to make photocopying unnecessary.
    Second, doesn't the same logic apply to even normal circulation of "consumables"?
    Yes. I don't think any library should purchase anything that meets my definition of consumable.
    Should we refuse to circulate a textbook at all if it has "fill in the blank" questions after each chapter?
    No. This book doesn't meet my definition of a consumable. I have never seen the kind of material that dmeeds has seen, but I suspect that none of it would meet my definition of consumable. Here's a good test: Rip out all the consumable material. Do you have something substantial left over? If so, I wouldn't call the whole item a consumable and I would put it on reserve. If all I have left are the covers, a table of contents, and a brief introduction, then I have a consumable and don't put it on reserve.
    I think it is a slippery slope when we start deciding about circulation rules based on the content of the item.
    I think there is a very subtle distinction between what I appear to be doing and what I am doing. Or maybe I am on a slippery slope and just don't realize it. Libraries sequentially lend items to multiple people. Libraries never need the copyright holders permission to do this. Printers simultaneously distribute items to multiple people. Printers may not need permission, but they often do. I think it's safe to say that they almost always need permission. If student photocopying turns sequential use into simultaneous use, then I think I've crossed the line between library and printer. If 10 students photocopy the same 5 pages of text, they are still sequential users because they won't read those photocopies at the same time. If 10 students photocopy a consumable, then at some point there will be 10 simultaneously consumed items. In my mind, I see a clear difference between lender and distributor, but I can see how people could disagree with me.
  • I am very, very wary of judging content beyond legal requirements for a number of reasons, some of which are possibly assuming legal liability for the use of materials and making ethical decisions for other groups.

    In your example circumstance, I don't think you're forcing students to photocopy. People have their own agency. You are involved in some of the circumstances that allows students to copy in general, as all libraries are. There are certain circumstances in which a student may choose to photocopy, but a number of those circumstances are beyond your control- and then you're both deciding that the students' use isn't fair and you're assuming responsibility for student and faculty behavior in the creation of those circumstances. If the situation came up where I actually observed that behavior, I'd speak to the faculty member and buy additional copies.

    I think you are on a slippery slope, but I also think that slippery slopes aren't particularly convincing arguments or reasons to base policy in general.

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