Copyright and e-reserves

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  • I am in the process of developing an e-reserves policy for our library and have read many policies from other universities and found some of the comments and posting here very helpful.

    1. I am confused and curious about the use of ILL materials on e-reserves. Several of the policies I read said they do not allow this, but I also see policies stating that they will post any material obtained through “legal” means as long as it meets the other criteria of fair use or has been granted permission.


    2. I know that the accepted standard is to link directly to articles in databases with persistent identifiers when we have paid for access to them.

    Our system will be designed allowing faculty to post items without a librarian having to approve them. If a faculty member previously printed out an article to read and later decides to post it by faxing it into the system and attaching it as a PDF, from my understanding this is considered to be infringement.

    So, a faculty member must remember where they printed the document from and then request that the library make a persistent link?
    It seems like an added burden on them, when I feel that part of my job is to make this process as seamless and as painless as possible.

    I would be curious to hear opinions about this.

    3. Finally, I have read that some libraries require faculty to sign a statement indicating that they believe the items they post are fair use or that they have obtained permission.

    I am curious to hear opinions about this.
  • Your question 1 about whether ILL copies can be used to create e reserve materials is a good one. An ILL copy is simply a copy that has been legally acquired from another library. As such, it's not much different than a copy legally acquired pursuant to fair use. They are both legal copies. This standard, "legal copy," exists in several places in the statute, for example in Section 110 (1), permitting the performance of movies and other audiovisual works in the classroom, and in Section 109, the first sale doctrine (both of these refer to copies lawfully made). Thus, there's probably a sound basis for thinking that legally made copies are the equivalent of purchased copies when it comes to privileged uses.

    On the other hand, the fair use provision asks us to consider the effect of our use on the market for or value of the work (factor 4) and this is where the idea that a photo or other copy of a work might not make as good a fair use case as a purchased work. After all, if the faculty member or the library actually owns a copy, there is at least theoretically some money going to the copyright owner at some point, even if not for the particular use we contemplate when we make a work acquired through ILL available in an e reserve system. So, it's one fewer purchase. That is probaby where the idea comes from that it's not a good idea.

    My own opinion would be that it's (as is so often the case) a gray area and it comes down to risk aversion/tolerance. That said, I frankly think that the effect on the market of making copies for educational uses is not significantly affected by the purchase of a single copy from which the student copies will be reproduced. And, when coupled with the fact that the ILL copy is a legal copy, I am comfortable with using such a legal copy when needed.

    For a similar scenario, imagine that the work that will be used to make the student copies were purchased at a used book store. Should that also be prohibited? After all, no money from that purchase went to the copyright owner. Similarly, a preservation copy that the library owns, should that be prohibited? One would have to be quite risk averse to outlaw all these types of legal copies in ereserves.

    The answer to your second question is so complicated that I hesitate to even wade in ankle-deep. But, just to illustrate that there are some things that are just too hard to answer...

    What I think it comes down to is that the relative roles of the library, the university and the faculty member in copyright compliance are evolving and the library can't be expected to do everything. Right now, pretty much no one else does anything though, and if the library can't or won't do it, it doesn't get done. This is just not workable, but I honestly don't know the solution.

    But that speaks to the issue at too abstract a level and I know you would like to know specifically whether you have to make faculty use persistent links in lieu of posting articles in a way they are already accustomed to and probably like. Well, it's at least in part another risk thing. First, the contracts under which you acquired the materials that you would make available to students could be more forgiving, more generous in what they permit, more realistic one might say. That's always something we can work on. Don't agree that it's not authorized to print out an article and post it as a pdf. Another solution might be that if you really want people to use persistent urls, whether the contracts permit other use or not, you've got an educational task on your hands. How do I as a faculty member make a persistent link? Who's going to teach me or do it for me? Do I have to become an information retrieval expert to put together what used to be a list of reading materials that the copy shop would crank out for me?

    It gets worse. You didn't even mention the possibility that the pdf might not even be something that your library has license rights to. What then? Who figures that out? I'm just now learning how little anyone seems to know about HOW to integrate what we license already with what might be a fair use with what we need permission for in a digital document delivery system that faculty can use easily and that doesn't cost us more in manpower than we can possibly devote to it.

    Ok, question 3. An easy one. The faculty signed statement that a posting is a fair use protects no one and nothing. First, we must understand, don't we, that faculty aren't likely to be really good at making the judgment, all the incentives cut the wrong way (it's easy and quick to say it's fair; it's costly and time-consuming to say it's not), and they are not likely to view this as part of their job (figuring out and acting on the results). Further, if it's not fair use, were they supposed to get permission and pay the fees for the whole class? How realistic is that?

    So, we have to assume that there will be a high probability that such statements will mask some degree of infringement. Who's liable for it? Guess. Is a publisher going to go after Professor Smith? Or Professor Smith's university? If the university is going to be on the hook for what Professor Smith did within the scope of his employment, and all the cases suggest strongly that it will, why would the university want to set up such a system that almost guarantees that infringement will occur? Well, if it gave the matter any real thought, it wouldn't set up that system. But that gets us back to question 2 with its complex problems dealing with integrating things we've already paid for, things we need to pay for and things that really are fair use into a seamless system....

  • Georgia,

    Thank you so much for your reply. It will help me to articulate my viewpoint to my administration and let’s me know that I am not the only one struggling to find some answers.

  • Julia,
    Just a few 'actual practice' comments to add to Georgia's excellent reply.

    1.I will post ILL articles to e-reserves as a stop gap measure for a short time while I see if it is possible to purchase a copy or find the article elsewhere. I have done this several times with chapters of books while I am waiting for a purchased copy to arrive.

    2. I highly encourage faculty to use the library to post any items they have that might have a copyright issue. However, what they actually do inside their online classes is a mystery. I don't really have a problem with copying the pdf to our server and posting that instead of the persistent link. The logic behind this is that sometimes several articles will be from a database (which requires the student email account to log in) and several others will be from other sources (which require a password that I lock the pdf file with). Students should not have to go back and forth between log in types on one page!

    3. I don't require faculty to sign anything. I agree with Georgia on this.

    Good luck--it is a very gray area and opinions on what is 'fair' vary greatly.

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