Question about stated limits in reserve policies

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  • I am in the process of developing policy for our e-reserve program which is also the precursor for a library policy. I have read and read and read everything I could to answer some of my questions. I also have reviewed many other policies.

    I would like to hear people’s thoughts on the stating of firm limits in policies, such as the 10% or one chapter rules. I have read a few good articles that make a good case for why this is problematic and I agree with them. These limits always are interrupted as the ceiling limits without taking other issues into consideration. For instance one chapter of a book could be 10 pages or 100 pages.

  • I am not in favor of firm limits, but the value that I could see in them is when dealing with faculty who think everything should be fair use because it is educational. When they want to copy half a book onto electronic reserve you have a firm position when the policy states clearly how much can be used.

    Thus said, I would rather have the leeway of deciding based on the situation instead of having no room to compromise and narrowing fair use practice even further. Our university includes the guidelines in the copyright policy, but I use them as just that, not a hard and fast rule.
  • I recently went through the same process -- reviewing existing schools' policies and trying to devise practicable guidelines for our new e-reserves system. Providing guidelines with portion limits is helpful for faculty and e-reserves staff, who may not always be willing or able to do a reasonable and thorough fair use analysis for every item they place on e-reserve, but such guidelines can have the undesirable effect of unnecessarily limiting fair use.

    The compromise I came up with was to have a statement at the beginning of my e-reserve guidelines that says that our guidelines are based on what we believe to be a reasonable interpretation of the fair use statute, but that some uses which exceed the stated guidelines could still qualify as fair use. Because I serve as my library's copyright liaison, I then put my name and contact info for anyone who needs further assistance in such cases.

    This is similar to the statement found in the second of the two paragraphs that introduce the 1976 Guidelines for Classroom Copying ( -- and thank goodness that statement was included in the 1976 guidelines, considering how impractical and restrictive they are for higher ed. purposes!

    I would provide you with a link to the e-reserve guidelines I developed, but unfortunately, they're still a work-in-progress. They should be up sometime in the next month, though, so I'll try to remember to provide a link when it's available.
  • I am firmly against any sort of quantitative guidelines that could be incorrectly interpreted as ceilings.

    In addition to that problem, I believe that exact numbers encourage people to place more weight on the second factor than it deserves.

    In my opinion, the fourth factor, the market effect, is the critical factor in fair use determinations. Copyright holders only oppose fair use when they are losing money or believe they are losing money. From the copyright holders' perspective, the market effect appears to be the primary, if not only, determinant used.

    I usually assume that the second factor works against me but is cancelled out by the first factor, which always works for me. When I determine that the market effect is significant, I determine that the use is unfair, regardless of the amount used. Similarly, when I determine that the market effect is trivial or non-existent, I determine that the use is fair, even if the amount used is 100%.

    Unfortunately, determining the market effect is a difficult, inexact science. I understand why faculty are uncomfortable with this factor. However, quantitative guidelines encourage risk adverse people to rely less on the critical fourth factor and more on the less important second factor.

    In my next post, I will discuss what I would use in place of quantitative guidelines.
  • In my opinion, there are three kinds of people who "need" quantitative guidelines:

    1. People who are extremely risk adverse
    2. People who don't know how to make fair use determinations
    3. People who don't know the real risks involved and assume a worst-case scenario.

    This may sound harsh, but people who are so adverse to risk that they will not make a fair use determination without a quantitative guideline have no business making fair use determinations. Someone like us, given authority by the library or school, needs to make the determination for them. If they are unwilling to allow someone like us to make the determination, then they shouldn't be using electronic reserve.

    People who don't know how to make fair use determinations without guidelines can be shown. This could be done on an individual basis, with workshops, or with non-quantitative guidelines.

    No matter how this is done, real determinations that use all four factors need to be shown. Guidelines that treat each factor separately may be useful, but you really need to take a book, or a paragraph from an article, or a clip from a movie, or whatever, and actually do the determination. Those who are uncomfortable making determinations on their own need to see how it is done. That's why I always go through the four factors when someone asks a question on this board. Do this enough times and most people should figure out how to do it.

    Faculty should be aware of section 504 (I think) which exempts teachers in non-profit institutions from damages. In a worst-case scenario, a teacher who is sued and loses cannot be held liable for damages if he or she honestly believed the use was fair.

    I can understand how a teacher might want to avoid a lawsuit altogether, but how likely is it that the teacher would be sued? If a teacher gets a cease and desist letter, the teacher can always avoid a lawsuit by choosing to cease and desist. If the copyright holder demands payment for permission, the teacher can always pay.

    Perhaps teachers need to be educated in risk analysis. I think most teachers are willing to put their money in banks, or even the stock market, and are willing to ride in cars. If they are willing to accept these risks, they should be willing to accept the risks involved in fair use determinations.

    In any case, I support better education for teachers rather than quantitative guidelines.
  • I agree in theory with Alfred's objections to using guidelines, unless, perhaps, you make it UNDENIABLY clear that the guidelines should not be interpreted as maximum limits and that the specifics of your guidelines appear nowhere in sec. 107. But in the real world, with deadlines, staffing shortages, and all the other fun complications of life in play, my attitude is less doctrinaire.

    The problem I faced in setting up our e-reserves system is that I can't possibly do a fair use analysis for the several hundred items we will be placing on e-reserves each semester (copyright is only one of several duties I'm responsible for at my library, and I'm the only copyright liaison we have). Yet our university counsel--who perhaps has a lawyer's risk-averse approach to fair use, as opposed to my more liberal librarian's approach--has told me she's not comfortable with faculty doing their own analysis in each and every case. Consequently, I had to come up with some basic "rules of thumb" for our faculty and the people in our Circ. dept. who will be processing e-reserve requests to follow.

    There simply wasn't time to "educate" our faculty in risk analysis or how to do a proper fair use analysis. Learning how to do a proper fair use analysis, which must take into account the varying ways each factor has been addressed and continues to be addressed as the case law evolves, is an ongoing, neverending project, as far as I'm concerned--for myself as well as for our faculty. I could say that our counsel should be a little more willing to trust faculty in their fair use determinations, but then again, I'm not the one who's going to have to deal with the consequences, she is--whether it's a simple cease & desist letter or something more complicated. And I have to admit that, at least for a *small minority* of faculty members whose attitude towards copyright I've been able to discern, their approach can be fairly cavalier, even AFTER they've had some of their misconceptions about fair use addressed (e.g., believing a nonprofit educational should ALWAYS be considered fair use).

    An interesting thing I learned while researching other schools' e-reserve guidelines: Kenneth Crews, from IUPUI, has written eloquently about the serious drawbacks to fair use guidelines, yet the e-reserve system at his own institution relies on such guidelines:
    I take this as a pretty telling indicator of the need for flexibility in your approach to when and how guidelines should be used. The same is true for e-reserves systems at other prominent institutions known for the quality and contribution made by their copyright offices. Whether they call them by that taboo word, "guidelines," or something else, such as "rules of thumb," inevitably something beyond the four factors is provided on their e-reserve page to simplify the process for their faculty and e-reserves staff of deciding what can and cannot go on e-reserves under fair use.

    By no means am I saying that e-reserves policy should begin and end with a slavish reliance on fair use guidelines. But sometimes some concession to the real-life demands of a project as complicated and vast as campus e-reserves is in order.
  • I didn't mean to suggest that compromise isn't necessary sometimes or that what rkdavis is doing is wrong. Without knowing the details of a specific situation, I'm unquestionably against any sort of quantitative measurement for the reasons I've already discussed and one reason I forgot but will discuss below. That doesn't mean that I wouldn't compromise if necessary. In rkdavis' specific situation, I wouldn't be happy, but I'd probably do something very similar to what he is doing.

    rkdavis reminded me of the reason that I forgot because Kenneth Crews has written about it. The idea of a safe harbor is an illusion. Let's say you follow the IUPUI guidelines and place two articles from the same issue on reserve. Nothing prevents the journal from suing. Nothing guarantees that a judge will not rule in against IUPUI. The judge will make a determination based on the law, not the policy.

    Also, I'd like to say that my real problem isn't with the use of quantities but with the statement or implication that the quantities enable people to make definitive, accurate determinations of what is or is not legal. Although much has changed since I first started looking at policies, I have seen many policies make definitive statements on the legality of situations that are not definitive.

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