E-reserve use for subsequent semesters
- May 17, 2007 @ 10:34amjriding says:Good Hello. I am having a difficult time selling the idea to the library faculty and administration that we should stop paying permissions for subsequent semester use. I am not completely sure why they are so adamant in the first place, but they do not seem convinced by the fact that I feel the practice is acceptable according to my interpretation of Fair/Educational/Library Use, or that Donna Ferullo at Purdue says its ok :-). I thought the actual savings it would bring to our already strapped budget would have had a stronger impact on making my case, but alas.
What I am interested in finding is a) a positon statement, or verbiage, from ALA or CAN advocating the same position, b)names of universities who subscribe to this positon, or c) a flat rejection of the premise that if we own the material being used we should not have to apply for permission to make fair use materials available in subsequent semesters.
- May 18, 2007 @ 4:24amAFry says:Short answer:
Although I am a CAN team member, I am not authorized to speak for ALA, OITP, or CAN. I am speaking for myself.
You do not necessarily need to pay for subsequent semester use.
Subsequent semester rules have nothing to do with the law. They come from the guidelines, which are not law. I don't have the exact title now, but I have found Kenneth Crews article about the "Illusion of Fair Use Guidelines" very useful. You should be able to find it in Lexis-Nexis with the information I have given you.
When you say you own the material, do you mean the originals are on reserve or photocopies of the original are on reserve? You absolutely do not need to pay permission ever for original versions of materials that you own.
Your question requires a detailed answer that I may not have time for today. Hopefully, I will, but if not, I'll definitely get to it this weekend.
- May 18, 2007 @ 7:45amwilliamsonl says:I'm going to assume we are talking about copies here, not the original, for classroom or reserve room use. While AFry is absolutely correct that the one semester practice comes from guidelines, not law, I believe that at this point paying for repeated use is standard practice and has a well-developed market. Because most libraries do pay for repeated use, I think you would have a harder time supporting your argument in the event of a challenge.
I understand your frustration. Our library owns 3 different copies of an article--one in the original Yale journal and two other copies reprinted in books--but they are all paper and the instructor wanted the item on electronic reserve. Do we need permission or not? My institution takes a conservative copyright stance, so we paid for use, but I could easily have been persuaded that this should be fair use.
- May 19, 2007 @ 6:28amAFry says:I intend to write an article on this topic this summer. Unfortunately, I have higher priorities for at least 2 weeks. However, because of this question, I will write this article as soon as possible.
I believe that at this point paying for repeated use is standard practiceI agree.
Because most libraries do pay for repeated use, I think you would have a harder time supporting your argument in the event of a challenge.Again, I agree.
paying for repeated use has a well-developed market.I agree. I also agree that copyright holders always use this market as evidence of a market effect when determining fair use. However, I do not believe this is an appropriate argument. Paying for permission assumes that fair use does not apply. If we use the permissions market as evidence against fair use, we are assuming the conclusion.
What I am interested in finding is a) a position statement, or verbiage, from ALA or CAN advocating the same positionI think this is the best you are going to get: http://www.ala.org/ala/washoff/woissues/copyrightb/fairuseandelectronicreserves/ereservesFU.cfm I particularly recommend the summary at the end.
b)names of universities who subscribe to this positonI can't really help you here, but the above statement was endorsed by several library associations.
c) a flat rejection of the premise that if we own the material being used we should not have to apply for permission to make fair use materials available in subsequent semesters.You want the article I haven't written yet. But I'll give you a brief rejection here. Fair use is determined by four factors: character of use, nature of work, amount used, market effect. Subsequent use has absolutely nothing to do with the first 3 factors. As I said above, I don't believe the permissions market should be considered when determining the market effect, so I believe that subsequent use has absolutely nothing to do with the 4th factor either, but conventional wisdom disagrees with me. So, in my opinion, subsequent use has no effect on any fair use determination. Let's assume I'm wrong. It's still wrong to assume that subsequent use automatically requires permission. Compare usage of required reading in a massive introductory class to recommended reading in a small graduate seminar. It's possible that 1 semester of the freshman class could have a greater market effect than 20 years of the graduate seminar. Hope that helps.
- May 19, 2007 @ 6:33amAFry says:Something I forgot.
There's an article in a law journal that might be useful, although it doesn't deal with subsequent semesters. I don't have the reference right now, but I can get it on Monday. I think Ann Gassaway is the author. It deals with fair use in law libraries and has a sentence I really like about how not using fair use will result in a world where students can tape every episode of Ally McBeal but teachers won't be able to show a real court case in class.
- May 25, 2007 @ 7:05amAFry says:I have different articles mixed up in my head. The law journal article I was referring to in the last post was written by Ann Bartow. I referred to it in another thread. Post #7 has two long paragraphs from this article that greatly influenced my view of the permissions market. The Ally McBeal quote is the last paragraph of post #13, currently the last post on the thread.
- June 4, 2007 @ 8:43amwundercapo says:Another very interesting article I read recently on Fair Use is "An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005" by Barton Beebe. http://www.bartonbeebe.com/
What may have bearing on this conversation is that Beebe concluded that factor 4 tends to be an umbrella factor that follows the fair use determination in the other three, rather than independent in and of itself (since it almost always agrees with the final determination). It is a fascinating article that helps put in perspective the actual decisions in the courts when it comes to fair use.
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