"Using Electronic Reserves" report from CCC
- April 8, 2005 @ 2:53pmelizabethH says:Has anyone received a copy of this document from the CCC, and, if so, do you have any comments?
- April 18, 2005 @ 7:24pmAFry says:I have not received this document, but it is available on their web site: http://www.copyright.com/media/pdfs/Using-Electronic-Reserves.pdf My short answer is that this document relies on the false assumption that electronic reserves cannot be considered fair use. In my opinion, this document is an attempt to mislead librarians who do not understand copyright law. The long answer:
It is important for librarians, instructors, and students to remember that, from a copyright law perspective, there is no distinction between paper reserves and e-reserves.
True.The same fair use guidelines apply to e-reserves
True, if the guidelines are the ones established in 17 USC § 107. All other guidelines, including the commonly used Fair Use Guidelines, are "from a copyright law perspective" not law and not legally binding.Online Doesn’t Mean “Free” [True - Alfred]...Make sure you have permission before posting content.
Why? If the use is a fair use, then it can be posted without permission whether it is free or not.Limit E-Reserve Materials to Small Excerpts...If your e-reserve material is larger, it may not meet the fair use criteria.
Size does not negate the other three criteria, one of which is clearly always in our favor: educational use. Of course if we followed the first guideline, the point is moot because we already have permission.E-Reserves Require the Same Permissions as Coursepacks
What are they smoking? Unless I'm mistaken, students are charged for coursepacks. Are students charged for electronic reserves? Electronic reserves require the same fair use determination as coursepacks. The commercial nature of coursepacks clearly distinguishes them from the educational nature of electronic reserves. Whether or not permission is required, for not only electronic reserves but also coursepacks, depends on a full determination using all four factors.E-Reserves Are Not a Substitute for the Purchase of Textbooks (or Coursepacks)
True.The “first use is free” standard invoked by many libraries is not part of the Copyright Act or any subsequent rulings or provisions.
Neither is the "second use requires permission" standard. [quote]Any content posted in an e-reserve channel always requires copyright permission, unless it is covered by fair use, public domain, or other exception.[/quote] Compare that with the following: Unless it is covered by fair use, public domain, or other exception, any content posted in an e-reserve channel requires copyright permission. Is my version less accurate? By beginning their version with "Any content" and using the word "always", they create the impression that fair use never applies.Get Permission Before Posting
for any material that fails the fair use criteria.Reposting of the same material for use in a subsequent semester requires a new permission.
Unless the copyright holder says otherwise. I have a letter in my office from a copyright holder that authorizes permission for all educational uses of their material.Passwords Are A Good Start
but not required by law.However, by itself, the use of authentication measures such as passwords is not enough to satisfy the fair use standard and permission is still required prior to use of the content.
The use of authentication is never by itself because the nature of electronic reserves is always educational. Permission is only required if the use fails the four fair use criteria.Know What You’ve Paid For
This is indeed a "best practice."Work From Authorized Originals
I'm not sure that this is necessary. If my use is fair, does it matter that I'm using a bootleg copy?Remove Expired E-Reserves Promptly- Make sure you take down (or remove access to) copyrighted e-reserve content for a particular class when the term concludes
I agree that promptly removing expired material is a good idea. However, I don't think material necessarily expires at the end of the term.Include Copyright Notices
I'm not as certain about the law on this point. As I understand it, 17 USC § 107 says nothing about copyright notices. Which means, I think, that any use which is fair is fair regardless of the existence or lack of a copyright notice. However, I really need to read more about this point. As you can see, I'm not enamored with this document. I see this forum as an opportunity for us to clear up the widespread misunderstanding of copyright law that has been perpetuated by documents like this, so I hope more people will join the discussion. - April 18, 2005 @ 9:07pmelizabethH says:Thanks for such a comprehensive reply and for the link-- I definitely worry that if there is not comment and refutation this could somehow become accepted practice and cited as such. CCC representatives at Midwinter seemed surprised that most in the large ILL audience they were speaking to did not agree that fair use applied only to photocopies. We need to keep pushing alternative views to this. [quote]I have not received this document, but it is available on their web site: http://www.copyright.com/media/pdfs/Using-Electronic-Reserves.pdf My short answer is that this document relies on the false assumption that electronic reserves cannot be considered fair use. In my opinion, this document is an attempt to mislead librarians who do not understand copyright law. The long answer:
It is important for librarians, instructors, and students to remember that, from a copyright law perspective, there is no distinction between paper reserves and e-reserves.
True.The same fair use guidelines apply to e-reserves
True, if the guidelines are the ones established in 17 USC § 107. All other guidelines, including the commonly used Fair Use Guidelines, are "from a copyright law perspective" not law and not legally binding.Online Doesn’t Mean “Free” [True - Alfred]...Make sure you have permission before posting content.
Why? If the use is a fair use, then it can be posted without permission whether it is free or not.Limit E-Reserve Materials to Small Excerpts...If your e-reserve material is larger, it may not meet the fair use criteria.
Size does not negate the other three criteria, one of which is clearly always in our favor: educational use. Of course if we followed the first guideline, the point is moot because we already have permission.E-Reserves Require the Same Permissions as Coursepacks
What are they smoking? Unless I'm mistaken, students are charged for coursepacks. Are students charged for electronic reserves? Electronic reserves require the same fair use determination as coursepacks. The commercial nature of coursepacks clearly distinguishes them from the educational nature of electronic reserves. Whether or not permission is required, for not only electronic reserves but also coursepacks, depends on a full determination using all four factors.E-Reserves Are Not a Substitute for the Purchase of Textbooks (or Coursepacks)
True.The “first use is free” standard invoked by many libraries is not part of the Copyright Act or any subsequent rulings or provisions.
Neither is the "second use requires permission" standard. [quote]Any content posted in an e-reserve channel always requires copyright permission, unless it is covered by fair use, public domain, or other exception.[/quote] Compare that with the following: Unless it is covered by fair use, public domain, or other exception, any content posted in an e-reserve channel requires copyright permission. Is my version less accurate? By beginning their version with "Any content" and using the word "always", they create the impression that fair use never applies.Get Permission Before Posting
for any material that fails the fair use criteria.Reposting of the same material for use in a subsequent semester requires a new permission.
Unless the copyright holder says otherwise. I have a letter in my office from a copyright holder that authorizes permission for all educational uses of their material.Passwords Are A Good Start
but not required by law.However, by itself, the use of authentication measures such as passwords is not enough to satisfy the fair use standard and permission is still required prior to use of the content.
The use of authentication is never by itself because the nature of electronic reserves is always educational. Permission is only required if the use fails the four fair use criteria.Know What You’ve Paid For
This is indeed a "best practice."Work From Authorized Originals
I'm not sure that this is necessary. If my use is fair, does it matter that I'm using a bootleg copy?Remove Expired E-Reserves Promptly- Make sure you take down (or remove access to) copyrighted e-reserve content for a particular class when the term concludes
I agree that promptly removing expired material is a good idea. However, I don't think material necessarily expires at the end of the term.Include Copyright Notices
I'm not as certain about the law on this point. As I understand it, 17 USC § 107 says nothing about copyright notices. Which means, I think, that any use which is fair is fair regardless of the existence or lack of a copyright notice. However, I really need to read more about this point. As you can see, I'm not enamored with this document. I see this forum as an opportunity for us to clear up the widespread misunderstanding of copyright law that has been perpetuated by documents like this, so I hope more people will join the discussion.[/quote] - July 21, 2005 @ 1:19pmRDavis says:This is in reply to an old message posted by Alfred, but I was just scanning over some of the old posts and this one caught my eye.
I too read the CCC document on using electronic reserves with a VERY skeptical eye. But I was recently asked about a professor setting up an "electronic coursepack" via his Blackboard (course management software) site here at my campus, and I wonder how the "market" that has arisen in permission fees for print coursepacks would affect a fair use determination for electronic coursepacks.
First of all, Alfred refers to the "commercial nature" of (print) coursepacks. Here at my campus the bookstore only charges students enough to recover the fees they have had to pay publishers for the permission to copy the articles contained in the coursepack. Does that make really make a coursepack a "commercial" venture and therefore differentiate it from electronic reserves as Alfred suggests?
And if I'm not mistaken, the fact that a market existed for permissions was cited in the Texaco case as counting against a finding of fair use, under the market effect factor. True, this case involved a for-profit company, so the first fair use factor (nature of the use) would also weigh against fair use, whereas this would not be true for an educational institution. But if there is an established practice where publishers have received fees for articles reprinted in coursepacks, why would those same publishers feel they have to give up those fees simply because many instructors and libraries are now able to create coursepacks electronically? And, more importantly, would a judge see any reason to differentiate print coursepacks from electronic coursepacks?
(To avoid further confusion, I'm making a distinction between electronic reserves and electronic coursepacks which Alfred may not have been making, with the latter being the equivalent of a course reader used in lieu of a textbook, and not just supplemental readings.)
Anyway, I hope my questions make sense and look forward to any thoughts others may have...
From Alfred's original post:
Quote:
E-Reserves Require the Same Permissions as Coursepacks
What are they smoking? Unless I'm mistaken, students are charged for coursepacks. Are students charged for electronic reserves? Electronic reserves require the same fair use determination as coursepacks. The commercial nature of coursepacks clearly distinguishes them from the educational nature of electronic reserves. Whether or not permission is required, for not only electronic reserves but also coursepacks, depends on a full determination using all four factors. - July 21, 2005 @ 3:12pmCOvalle says:[quote]
First of all, Alfred refers to the "commercial nature" of (print) coursepacks. Here at my campus the bookstore only charges students enough to recover the fees they have had to pay publishers for the permission to copy the articles contained in the coursepack. Does that make really make a coursepack a "commercial" venture and therefore differentiate it from electronic reserves as Alfred suggests?
[/quote]
It's a commercial venture for the copying entity- in that case, the bookstore. The Kinko's case is pretty interesting in this respect:
Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991)
Here's Georgia Harper's analysis of this case (from the University of Texas System):
http://www.utsystem.edu/ogc/intellectualproperty/mono1.htm#settle
She also has more about fair use and course packs in general here:
http://www.utsystem.edu/ogc/intellectualproperty/michigan.htm
So E-Reserves are not the same as coursepacks from those perspectives.
[quote]And if I'm not mistaken, the fact that a market existed for permissions was cited in the Texaco case as counting against a finding of fair use, under the market effect factor. True, this case involved a for-profit company, so the first fair use factor (nature of the use) would also weigh against fair use, whereas this would not be true for an educational institution. But if there is an established practice where publishers have received fees for articles reprinted in coursepacks, why would those same publishers feel they have to give up those fees simply because many instructors and libraries are now able to create coursepacks electronically? And, more importantly, would a judge see any reason to differentiate print coursepacks from electronic coursepacks?
(To avoid further confusion, I'm making a distinction between electronic reserves and electronic coursepacks which Alfred may not have been making, with the latter being the equivalent of a course reader used in lieu of a textbook, and not just supplemental readings.)[/quote]
I think I understand where you're coming from. I think that if the electronic copy is identical to the physical copy in all respects, and the physical copy is a fair use based on analysis, you still have a good fair use argument for the electronic copy. Whether a judge distinguishes the two is a good question- I'll try to look up related cases when I get a chance. If you still go through CCC or whatever other method is currently used for licensing of materials, then you can definitely do whatever the license says you can do... if it only says you can use print copies, you'd have to negotiate another license or rely on fair use for electronic copies... - July 21, 2005 @ 7:04pmAFry says:Thanks for joining the discussion, rkdavis. You bring up some excellent questions that I do not think are discussed enough.
I wonder how the "market" that has arisen in permission fees for print coursepacks would affect a fair use determination for electronic coursepacks.
The permission fee "market" shouldn't affect any fair use determination. There's a great article that explains why, but I can't find it right now. I'll quote it when I can. The permission fee "market" cannot be used in a fair use determination because of the circular logic fallacy. You cannot assume the conclusion. Fair use does not require permission. Therefore, fair use does not require a permission fee. Therefore, no permission fee is "lost" when a use is fair. To use "lost" permission fees in a fair use determination is to assume that the use is unfair before making the determination.And if I'm not mistaken, the fact that a market existed for permissions was cited in the Texaco case as counting against a finding of fair use, under the market effect factor.
I have to read this decision again when I'm not tired. I've taken a quick look at the case, and I think the judge is wrong on this particular point. This point seems to be inconsequential to the Texaco decision. However, in a case where this point is consequential, I think that a judge would side with the circular logic argument if it were presented. - July 22, 2005 @ 3:26amAFry says:Ann Bartow wrote about permission fees in Educational Fair Use in Copyright: Reclaiming the Right to Photocopy Freely which appeared in Fall, 1998, 60 U. Pitt. L. Rev. 149.
Here are some excerpts:
"The reasoning used by the Michigan Document Services en banc majority in assessing the market effect of educational course packets has been widely and justifiably criticized. n294 Rather than requiring evidence that textbook and periodical sales were subverted by MDS's photocopying of course packets to show detrimental market effect, the court allowed the publishers to present evidence of lost permission fees. As dissenting Judge Ryan characterized it, the publishers were allowed to argue "that they are entitled to permission fees . . . because they are losing permission fees." n295 Of course, publishers would be entitled to permission fees only if the photocopying was not an educational fair use, and whether or not the copying was educational fair use was the ultimate question the court was supposed to be deciding. The court therefore allowed plaintiff publishers a presumption that they would prevail, and to assert damages that didn't conceptually exist until after they won."
"MARKET EFFECT: Publishers must not be permitted to assert damages that depend on them winning the fair use issue before they have won, and they shouldn't be able to use the magnitude of "lost" permission fees to demonstrate market effect, because they haven't lost permission fees if they aren't entitled to them. n489 Publishers must be required to [*229] prove that they lost income by demonstrating lost sales of books and reprints, and not by tallying "lost" permission fees that necessarily presume success on the ultimate issue before the court prior to its being decided. n490 Moreover, publishers should not benefit from evidence of the willingness of educational institutions to pay "customary" permission fees. Such willingness should be seen for what it really is--capitulation to publishers' demands in order to avoid protracted, expensive litigation with an uncertain outcome. Finally, the significant external benefits of educational fair use must be accorded far more importance when contrasted with any royalty income that fair use prevents publishers from realizing." - July 25, 2005 @ 11:33amslschelp says:Alfred, I just had the opportunity to read your posted response dated July 18th. I always find your comments interesting, but a small part of this one caused me to pause. In reference to the CCC "Work from authorized originals" you replied in part, "If my use is fair use, does it matter that I'm using a bootleg copy." I have been of the understanding that working from a legal copy of material is generally integral to a copyright compliant use in an educational environment. While this posting correlates to reserves and fair use exemption, I know that I have seen frequent reference to works being excluded from TEACH Act exemption for digital transmission if made from copies not lawfully made or acquired. Would the same principle not apply, in particular, for E-reserves? It seems that many of the concerns associated with on-line education run parallel to those associated with E-reserves. I would appreciate any additional comments that you or others may have regarding this specific portion of your answer.
- July 25, 2005 @ 12:32pmCOvalle says:
Alfred, I just had the opportunity to read your posted response dated July 18th. I always find your comments interesting, but a small part of this one caused me to pause. In reference to the CCC "Work from authorized originals" you replied in part, "If my use is fair use, does it matter that I'm using a bootleg copy." I have been of the understanding that working from a legal copy of material is generally integral to a copyright compliant use in an educational environment. While this posting correlates to reserves and fair use exemption, I know that I have seen frequent reference to works being excluded from TEACH Act exemption for digital transmission if made from copies not lawfully made or acquired. Would the same principle not apply, in particular, for E-reserves? It seems that many of the concerns associated with on-line education run parallel to those associated with E-reserves. I would appreciate any additional comments that you or others may have regarding this specific portion of your answer.
The fair use exemption does not specifically say that you must use a legitimate copy. The educational exemption specifically states that the copy must be lawfully made and acquired. If you're relying on education or TEACH Act exemptions, the copy must be lawfully made, ie, not a bootleg. It is often much easier to rely on fair use than on the educational exemption, particularly when dealing with the TEACH Act. The TEACH Act is not sufficient for E-Reserves, or for asyncronous online education in general, I've found. It could be argued that the purchase of a legitimate copy affects the market for the work when making a fair use case, so I'd always try to have a legimitate copy if possible anyway. - July 25, 2005 @ 1:12pmRDavis says:Thank you both, Alfred and cjovalle, for your well-considered responses to my questions and for the links to useful articles on the topic. I can see the circular logic inherent in claiming lost permission fees before it's been established that those fees should even be paid in the first place.
Making the leap from print coursepacks to electronic coursepacks is complicated in my case by the fact that our campus bookstore has already established a precedent for print coursepacks in which they nearly always ask permission and pay royalties/fees. My school has incorporated the classroom copying fair use guidelines into its faculty handbook and has perhaps too often made the common mistake of taking the guidelines as maximum limits, rather than as minimum guidelines, as they are explicitly described. Preparation of a coursepack months or weeks before it is needed is seen as going against the spontaneity test--not to mention the cumulative effect test that may or may not also come into play--from the classroom copying guidelines.
Perhaps going to e-reserves provides an opportunity for reassessing our use of the guidelines, but I suspect until the threatened lawsuit against UC San Diego for their e-reserves system is resolved one way or the other, our university counsel will unfortunately be very reluctant to push the envelope too far.
Anyway, thank you both again for your help. - July 26, 2005 @ 6:17amAFry says:cjovalle did a great job explaining my view on using legitimate copies. I don't want to sound like I'm in favor of using bootleg copies. I've never knowingly used a bootleg nor do I ever intend to use one. Regardless of the law, I'm in favor of using legitimate copies from a moral perspective.
It could be argued that the purchase of a legitimate copy affects the market for the work when making a fair use case
If this hypothetical situation went to court, I'd expect that argument to be made. My response would be the following. The market is affected by the person who obtained the bootleg copy instead of a legitimate copy. My use has no further effect on the market. I do wonder if knowingly using a bootleg copy might be against other laws. If someone commits a crime and I know about it, doesn't that make me an accessory after the fact? If I distribute a bootleg, am I guilty of trafficking stolen goods? I don't know and probably never will since I'm planning on using legitimate copies. - July 26, 2005 @ 6:22amAFry says:
Perhaps going to e-reserves provides an opportunity for reassessing our use of the guidelines
I would like to discuss your specific situation, but I don't have time right now. Please don't go away. If you haven't done so already, you can check the box that will notify you when a reply is posted. - July 28, 2005 @ 7:35amAFry says:
I suspect until the threatened lawsuit against UC San Diego for their e-reserves system is resolved one way or the other, our university counsel will unfortunately be very reluctant to push the envelope too far.
I wasn't aware of the UC San Diego situation. Thanks for alerting me to it. In my opinion, the UC San Diego situation will never be resolved. Based on what I've read, AAP has no case. At best, it's a coin flip for them. I don't see how AAP can risk a loss without better odds. However, I think AAP truly believes it is morally correct. AAP might quietly disappear or switch to a more promising target, but I don't think AAP will reach an agreement with UCSD.Perhaps going to e-reserves provides an opportunity for reassessing our use of the guidelines
I did this. My experience was extremely frustrating but ultimately successful.Making the leap from print coursepacks to electronic coursepacks is complicated in my case by the fact that our campus bookstore has already established a precedent for print coursepacks in which they nearly always ask permission and pay royalties/fees. My school has incorporated the classroom copying fair use guidelines into its faculty handbook and has perhaps too often made the common mistake of taking the guidelines as maximum limits, rather than as minimum guidelines, as they are explicitly described.
This certainly hurts your chances. However. if you choose to pursue a reassessment, here's some advice. 1. Know what the lawyers are trying to do. In my opinion, the lawyers should be trying to strike an appropriate balance between risk and reward. However, many lawyers seem to be trying to minimize risk by avoiding law suits at all cost. As long as they are trying to minimize risk, you will not win. Paying the bully is always the best way to avoid getting beat up. If you think that the lawyers are trying to minimize risk, you can probably change their goal by showing them situations where the reward is worth the risk. Is it better to put you money in a mutual fund or under your mattress? Is the freedom of movement provided by cars worth risking you life or your kids' lives? I think intelligent, open-minded people will see that the goal should be to balance risk and reward not minimize risk. 2. Distinguish between fair use (section 107) and library reproduction (section 108). According to 108, "Nothing in this section...in any way affects the right of fair use as provided by section 107." I have found that many people counter fair use arguments with section 108. These counter-arguments have absolutely no merit. 3. The guidelines are not law. Judges decide cases based on the law, not the guidelines. Judges who have used the guidelines have only done so to support a four-factor determination. 4. The guidelines are not law. No one believed you the first time you said it. 5. The guidelines do not provide a safe harbor. Even if they do, the safety provided is miniscule compared to the cost. Ann Bartow, Assistant Professor of Law at the University of South Carolina School of Law calls the guidelines “A restrictive, microscopic safe harbor for multiple-copying educators." (Educational Fair Use in Copyright: Reclaiming the Right to Photocopy Freely. 60 U. Pitt. L. Rev. 149) However, I think Kenneth D. Crews, Professor at the Indiana University School of Law is more accurate when he says, “Without near unanimity among the publishers, authors, and other copyright owners, the concept of a truly safe harbor for any set of guidelines is fatally flawed. As long as the right to sue or even threaten to sue a party remains, the harbor has rough water and mines.” (The Law of Fair Use and the Illusion of Fair-Use Guidelines. 62 Ohio St. L.J. 599). Has Elsevier agreed to the guidelines? Springer-Verlag? Cambridge? Oxford? Even the companies that accept the guidelines are not legally bound by them. If any publisher can convince a judge that a use is unfair by using the four-factors, then a defense using the guidelines will fail. 6. Fair use should be determined by the user, not the copyright holder, using the four factors. Here's the final paragraph from the Statement on fair use and electronic reserves (http://www.ala.org/ala/acrl/acrlpubs/whitepapers/statementfair.htm) which is “endorsed by the Association of College and Research Libraries (ACRL) and the Office for Information Technology Policy (OITP) of ALA, the Association of Research Libraries (ARL), the Association of American Law Libraries (AALL), the Medical Library Association (MLA), and the Special Libraries Association (SLA).”: "While there is no guarantee that a practice or combination of practices is fair use, such certainty is not required to safely implement e-reserves. The law builds in tolerance for risk-taking... Each institution’s combination of practices reflects its tolerance for risk against the background of prevailing beliefs about fair use. Understandably, “not knowing” makes many people uncomfortable, so Congress explicitly addressed this aspect of fair use. Section 504(c)(2) of the Copyright Act provides special protection to nonprofit libraries, educational institutions and their employees. When we act in good faith, reasonably believing that our actions are fair use, in the unlikely event we are actually sued over a use, we will not have to pay statutory damages even if a court finds that we were wrong. This demonstrates Congressional acknowledgement of the importance of fair use and the importance of our using it! And from Ann Bartow: "Exercise your right to educational fair use. Don't ask permission to use a copyrighted work for nonprofit, educational purposes, because to do so would be to tacitly admit that permission is needed…If we don't fight compression, we will doom ourselves to a scope of fair use that allows law students to make unencumbered videotapes of every episode of Ally McBeal and The Practice, but requires law professors to secure permission and remit royalty payments before distributing a newspaper article concerning an actual trial."
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