TO: Directors of ARL Libraries
FROM: Duane Webster
RE: Electronic Reserves and Fair Use
DATE: November 5, 2003
With recent changes to the U.S. copyright law, including the passage of the
TEACH Act, there is renewed interest in identifying library best practices
in applying fair use to electronic reserves operations. In the late 1990s,
electronic reserves were a primary focus of the Conference on Fair Use
(CONFU). Libraries and higher education associations rejected the draft
CONFU electronic reserves guidelines because they were highly proscriptive
and did not provide the necessary flexibility inherent in fair use.
Instead of guidelines, the library community has developed a statement to
serve as a framework within which libraries may assess risk in terms of
applying the four fair use factors to electronic reserves operations.
Below you will find the statement, "Applying Fair Use in the Development of
Electronic Reserves Systems." This statement seeks to articulate how
institutions are currently applying fair use to copyrighted materials
included in electronic reserves systems. In addition, the statement
provides general guidance on design and operation of systems that are both
compliant with copyright law and take full advantage of fair use and
library exemptions that are central elements of the law. The statement
addresses only how U.S. copyright law applies to electronic reserve
operations in academic institutions. The application of U.S. copyright law
to the use of copyrighted materials in course- or learning-management
systems is out of scope of this statement.
Our thanks go to Georgia Harper, Manager, Intellectual Property Section,
University of Texas System Office of General Counsel, and Peggy Hoon,
Scholarly Communication Librarian, North Carolina State University, for
their assistance in the drafting of and commenting on this document. The
statement was reviewed and endorsed by the ARL Intellectual Property and
Copyright Committee, chaired by Paula Kaufman (Illinois at
Urbana-Champaign), and also endorsed by other library association members
of the Shared Legal Capability (ALA, AALL, ARL, MLA, and SLA).
I also want to alert you that Ms. Harper and Ms. Hoon expect to send this
document to their colleagues, the university attorneys, including those at
ARL institutions, within the next two weeks. ARL's partner library
associations within the Shared Legal Capability also plan wide distribution
of the statement. Please contact Mary Jackson if you have
any questions concerning this statement.
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Applying Fair Use in the Development of Electronic Reserves Systems
November 2003
For decades libraries have provided access to materials selected by faculty
that are required or recommended course readings in a designated area of
the library, with materials available to students for a short loan period
and perhaps with additional restrictions to ensure that all students have
access to the material. Libraries have based these reserve reading room
operations on the fair use provisions of the Copyright Law (Section 107).
Within the past decade many libraries have introduced electronic reserves
(e-reserves) systems that permit material to be stored in electronic form
rather than storing photocopies in filing cabinets. Depending on the
particular electronic reserves system, student access may occur in the
library or remotely. Students who wish to have a copy of the reading can
print it from the e-reserves systems rather than having to take the
original volume to a photocopy machine.
The number of electronic resources licensed by libraries has increased
significantly over the past decade. The licenses to these resources often
include the right to use them in e-reserves systems. In such cases, no
permission is required and a fair use analysis is unnecessary.
To ensure, however, that electronic content is effectively incorporated
into e-reserve systems, there must be cooperation among library staff
acquiring the digital resources and those managing e-reserves operations.
They must work together to be certain that the license agreements do not
preclude rights to make materials available through e-reserves systems, and
that no one pays additional permission fees for uses already covered by a
license.
As a result of the increase in licensed electronic resources, the
percentage of print materials requested and digitized for e-reserves is
diminishing. E-reserves practices for these materials vary widely and are
influenced by institutional organizational structures, the information and
technology infrastructure, manpower, demand, and the copyright law. The
factors described below demonstrate a range of considerations when
implementing fair use for e-reserves. They also distinguish the approach
librarians are entitled to take when determining whether a use is fair from
the approach librarians must take when determining whether a use falls
within another statutory exemption. For example, Sections 108 (the library
reproduction exemption) and 110 (exemption for public displays and
performances including the TEACH Act) mandate a "checklist" approach: if a
proposed use fails to comply with any condition, prohibition, or exclusion,
the exemption does not apply.
Section 107's four-factor fair use test takes a fundamentally different
approach: it simply directs that libraries assess overall whether a use is
fair by considering the character of the use, the nature of the work to be
used, the amount used in proportion to the whole and the impact on the
market for the work. There is no fair use checklist, and there is no need
to import from other sections of the law the detailed checklists of
conditions, prohibitions, and exclusions that characterize their approach.
Librarians balance their own interests with the copyright owners'
interests. This summary illustrates ways in which libraries can apply fair
use criteria in the development of best practices for e-reserves.
First factor: The character of the use.
- Libraries implement e-reserves systems in support of non-profit
education.
Second factor: The nature of the work to be used.
- E-reserve systems include text materials, both factual and creative.
- They also serve the interests of faculty and students who study music,
film, art, and images.
- Librarians take the character of the materials
into consideration in the overall balancing of interests.
Third factor: The amount used.
- Librarians consider the relationship of the amount used to the whole of
the copyright owner's work.
- Because the amount that a faculty member
assigns depends on many factors, such as relevance to the teaching
objective and the overall amount of material assigned, librarians may also
consider whether the amount, even the entire work, is appropriate to
support the lesson or make the point.
Fourth factor: The effect of the use on the market for or value of the work.
- Many libraries limit e-reserves access to students within the
institution or within a particular class or classes. Many use technology to
restrict and/or block access to help ensure that only registered students
access the content.
- Libraries generally terminate student access at the
end of a relevant term (semester, quarter, or year) or after the student
has completed the course.
- Many e-reserves systems include core and
supplemental materials. Limiting e-reserves solely to supplemental readings
is not necessary since potential harm to the market is considered
regardless of the status of the material.
- Libraries may determine that
if the first three factors show that a use is clearly fair, the fourth
factor does not weigh as heavily.
Summary
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. At one end of the continuum
are combinations of practices with which individuals and institutions
tolerant of some risk will be comfortable. On the other end are
combinations of practices with which those who are averse to risk will be
more comfortable. 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!
This statement was developed by Georgia Harper, Manager, Intellectual
Property Section, The University of Texas System Office of General Counsel,
and Peggy Hoon, Scholarly Communication Librarian, North Carolina State
University for the library association members of the Shared Legal
Capability (ALA, AALL, ARL, MLA, and SLA). Within ARL, it was reviewed and
endorsed by the ARL Intellectual Property and Copyright Committee.
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Duane Webster
Executive Director
Association of Research Libraries
21 Dupont Circle
Washington, D.C. 20036
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