e-reserves coincidently in a coursepack

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  • Here is the situation: A copy center has course packs (consisting of short articles, excerpts from book chapters, etc) for sale (copyright permission was obtained for the course packs) for classes at a college. The library, which owns copies of all of the materials used to create the course packs, has the same articles, excerpts, etc. available as e-reserves. Assuming the e-reserves alone would fall under fair-use, does the fact that the course packs are available make a difference?

    If so, would the dispute be between the copy center and the library? Since the publishers were already paid by the copy center, the library is really only harming the market for the course pack, not the original published works.
  • You must be kidding! This is exactly the situation publishers like to use to suggest that the same strict rule about permissions that apply to coursepacks should also apply to electronic reserves. Frankly, I would try never to allow this situation to arise. Why would both things be necessary in the first place?

    Anyway, I believe the fair use analysis would be different for the two uses. As far as coursepacks are concerned, we should remember that the course pack cases that declined to find fair use both involved commercial intermediaries that made the packs and sold them to students. Thus the first fair use factor was counted against the coursepack makers. With electronic reserves, the non-profit institution itself is making the copies and there is no charge for access. That means that the first factor is more likely to favor fair use for e-reserves than it does for coursepacks.

    That said, I think the existence of an identical coursepack for which permissions were paid would be a strong point of argument against fair use; even if it is distinguishable in the four factor analysis (and I think it is), it would inevitably create a bad impression. I would much rather talk with the instructor about how the readings are going to be used and then decide which of the two methods of distribution made more sense pedagogically. Then I would proceed with only that method and make a fair use decision based on all of the circumstances attended on the type of distribution we chose.

    As for who would have a conflict with whom, there is no issue of a fight between the library and the copy center, since the latter would have only a very limited copyright interest in the works, based on the license it had purchased. The copyright would still be owned by the author or publisher, and the fact that they had sold a license to the copy center for one kind of reproduction and distribution would not affect their rights in the other situation -- they could still object that a license was required for the e-reserves and you would then have to choose between purchasing that license or interposing a fair use argument.

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