ACRL News Issue (B) of College & Research Libraries 756 / C&RL News ■ December 2003 W a s h i n g t o n H o t l i n e Lynne E. Bradley New statement on fair use and electronic reserves Since the CONFU (Conference on Fair Use) discussions in the late 1990s, there have been numerous discussions concerning “best prac­ tices" of electronic reserve systems or e-re­ serves. The library and higher education as­ sociations did not endorse the CONFU dis­ cussions because the draft e-reserves guide­ lines w ere both highly proscriptive and did not provide the necessary flexibility charac­ teristic of fair use. Some libraries chose to follow the CONFU guidelines that did emerge even though those guidelines—like many copyright guidelines— do not have the force or effect of law. Other libraries chose to ad­ dress reserve practices based on the fair use doctrine (17 U.S.C § 107). With the passage of the Technology, Edu­ c a tio n a n d C o p y rig h t H a r m o n iz a tio n (TEACH) Act o f 2002, librarians have ex­ pressed new interest in e-reserve practices. TEACH— a copyright amendment that pro­ vides n ew exem ptions for public perfor­ mance and display of digital works protected by copyright and the use of digital technolo­ gies to transmit copyrighted works for edu­ cational purposes—does not and was not intended to address e-reserves. In response to confusion about TEACH an d ongoing uncertainty regarding e-reserves, the follow­ ing document—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)—seeks to capture how institutions are applying fair use in the de­ velopment of electronic reserves systems. Our thanks to Georgia Harper, manager of the Intellectual Property Section of the University of Texas System Office of Gen­ eral Counsel and Peggy Hoon, scholarly Lynne E. Bradley is Office o f Government Relations director o f ALA's W ashington Office, e-mail: leb@alawash.org communications librarian at North Carolina State University, for their assistance in the drafting of and com menting o n this e-re- serves statement. If you have questions about the e-reserves statement, contact Carrie Russell, copyright specialist at the Office for Information Tech­ nology Policy at crussell@alawash.org. Applying fair use in the development of electronic reserves systems For decades libraries have provided access to materials selected by faculty that are re­ quired or recommended course readings in a designated area of the library, with materi­ als available to students for a short loan p e­ riod 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 pro­ visions of the Copyright Law (Section 107). Within the past decade, many libraries have introduced electronic reserves (e-re- serves) 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 w ho wish to have a copy of the reading can print it from the e-re- serves systems rather than having to take the original volume to a photocopy machine. The num ber of electronic resources li­ censed 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 per­ mission is required and a fair use analysis is unnecessary. To ensure, however, that electronic con­ tent 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 m ake materials available through e-re- serves systems, and that no one pays addi­ mailto:leb@alawash.org mailto:crussell@alawash.org C&RL News ■ December 2003 / 757 tional permission fees for uses already cov­ ered by a license. As a result o f th e increase in licensed electronic resources, the percentage o f print materials requested and digitized for e-re- serves is diminishing. E-reserves practices for these materials vary w idely and are influ­ en ced by institutional organizational struc­ tures, the information and technology infra­ structure, manpower, dem and, and the copy­ right law. The factors described below dem ­ onstrate a ran g e o f co n sid eratio n s w h en implementing fair use for e-reserves. They also distinguish the approach librarians are entitled to take w h en determining w hether a use is fair from the approach librarians must take w h en determining w hether a use falls w ithin another statutory exemption. For ex­ ample, Sections 108 (the library reproduc­ tion ex em p tio n ) an d 110 (ex em p tio n for public displays and perform ances including the TEACH Act) m andate a “checklist” ap ­ proach: if a pro p o sed use fails to comply w ith any condition, prohibition, o r exclu­ sion, the exem ption does not apply. Section 107’s four-factor fair use test takes a fundamentally different approach: it sim­ ply directs that libraries assess overall whether a use is fair by considering the character of the use, the nature of the w ork to be used, the am ount used in proportion to the w hole an d the impact on the m arket for the work. There, is no fair use checklist, and there is n o n ee d to import from other sections of the law the detailed checklists of conditions, prohibitions, and exclusions that character­ ize their approach. Librarians balance their ow n interests w ith the copyright ow ners’ in­ terests. This summary illustrates ways in which libraries can apply fair use criteria in the developm ent of best practices for e-reserves. First factor: The character o f the use. • Libraries im plem ent e-reserves systems in support o f nonprofit education. Second factor: The nature o f the w ork to b e used. • E-reserve systems include text materi­ als, both factual and creative. • They also serve the interests of faculty and students w ho study music, film, art, and images. • Librarians take th e ch aracter o f th e materials into consideration in the overall balancing of interests. Third factor: The am ount used. • Librarians consider the relationship of the am ount used to the w hole of the copy­ right ow n er’s work. • Because the am ount that a faculty mem­ b er assigns dep en d s o n many factors, such as relevance to the teaching objective and the overall am ount of material assigned, li­ b rarian s m ay also co n s id e r w h e th e r th e am ount, even the entire work, is appropriate to support the lesson o r m ake the point. Fourth factor: The effect o f the use on the m arket for or value of the work. • Many libraries limit e-reserves access to students w ithin the institution or w ithin a particular class or classes. Many use tech­ nology to restrict a n d /o r block access to help ensure that only registered students access the content. • Libraries generally terminate student ac­ cess at the en d o f a relevant term (semester, quarter, or year) or after the student has com­ pleted the course. • Many e-reserves systems include core and supplem ental materials. Limiting e-re- serves solely to supplem ental readings is not necessaiy since potential harm to the m ar­ ket is considered regardless of the status of the material. • Libraries may determ ine that if the first three factors show that a use is clearly fair, the fourth factor does n o t w eigh as heavily. Sum m ary While there is n o guarantee that a practice o r 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 o n e en d of the continuum are combinations o f practices with w hich indi­ viduals and institutions tolerant of some risk will b e comfortable. O n the other end are com binations of practices w ith w hich those w ho are averse to risk will be m ore comfort­ able. Each institution’s com bination of prac­ tices reflects its tolerance for risk against the background of prevailing beliefs about fair use. Understandably, “not know ing” makes m any p eo p le uncom fortable, so Congress explicitly addressed this aspect o f fair use. Section 504(c)(2) of the Copyright Act pro­ vides special protection to nonprofit libraries, (co n tin u ed on p a g e 771) 758 / C&RL News ■ December 2003 DISCOVER BLA C KW ELL’S Digital Reference Simply CONVENIENT. W e r e y o u r best choice, f r o m start to fin is h . You rely on us to deal with multiple publishers for your print collections. N ow we do the same for digital collections. Blackwell’s Digital Reference services include: • Consolidated ordering and publisher contact • Detailed prepublication information • Trial and order processing managem ent • Assistance with licensing and pricing questions • Technical assistance It’s w hat you’ve been looking for — expert help. W hen you’re ready to add online reference titles and databases to your collection, Blackwell’s is your simply convenient choice. Blackw ell BOOK SERVICE ’s S W W W .B LA C K W E L L.C O M • I . 8 O O . 5 4 7 . 6 4 2 6 • DIGITAL@ BLACKW ELL.COM http://WWW.BLACKWELL.COM mailto:DIGITAL@BLACKWELL.COM C&RL News ■ December 2003 / 7 7 1 Memorial Library, automate the library cata­ log, and fund an Endow-A-Book program. Coughlin published a num ber o f books and research papers in the areas of information resources management, library administra­ tion, personnel management, and issues in librarianship. She was co-editor of the offi­ cial journal of the youth services division of the ALA (1974-77). In 1992 and 1997, she co-authored revisions o f a standard text, Lyle’s A dm inistration o f the College Library. She was active in ALA, s a v in g on its Coun­ cil (1976-77 and 1979-80), as well as on n u ­ merous committees. Coughlin expressed a keen interest in supporting ALA’S Spectrum In itia tiv e . To m a k e a d o n a tio n , v is it w w w.ala.org/tribute to access a printable, mail-in form or to m ake an online credit card donation. Please indicate that your gift is in memory of Coughlin and in support of the Spectrum Initiative. You can also send a check, payable to ALA, to ALA Development Office, 50 E. H uron, Chicago, IL 60611. P lease w rite “S p ectru m /C aro lin e” in the memo section to earmark your gift. M i l t o n G. “R o y ” D a n i e l , d ir e c to r o f Brigham Y oung University’s Learning Re­ source Center, died June 24. Daniel began serving at the university library in 1979 as supervisor of the Learning Resource Center. In 1982 he became m anager o f the Learning Resources Division and earned his M.A. in Communications from BYU. He was also instrumental in managing personnel, equip­ ment, and scheduling during the libraiy’s re­ cent major expansion. C h ad J o h n F lake, curator of Special Col­ lections at Brigham Young University, died June 18 from leukemia. He came to BYU in 1955 after earning his M.A. degree in Library Science at Denver University. While at BYU he served as general reference librarian, docum ents librarian and helped acquire and preserve many rare books and manuscripts as curator. He became assistant professor in 1968 and associate professor in 1973. His award-winning work, Mormon Bibliography, 1830-1930, serves as an important reference guide. M a r y J a n e T a c c h i, 61, c o o rd in a to r o f Young Adult Seivices at the New York Pub­ lic Library (NYPL) since 1998, has died. She began h e r career w ith in th e NYPL Branch Libraries in 1966, first w orking as a refer­ en ce librarian at th e W akefield Branc in th e Bronx. T acchi later becam e th e su ­ pervising b o ro u g h specialist resp o n sib le for oversight o f y o u n g ad u lt w ork in all Bronx branches. Using th at b ro ad ex p eri­ en ce, sh e w en t o n to b ec o m e assistan t co o rd in ato r of Y oung A dult Services for th e B ranch Libraries, an d su b seq u en tly , y o u n g adult co o rd in ato r. As a longtim e m e m b er o f ALA’s Y oung A dult Library S erv ice s A s s o c ia tio n (YALSA), T a c c h i served o n n u m erous com m ittees, in clu d ­ ing, m ost recently, th e P rofessional D e­ v elo p m en t Planning Task Force an d the YALSA Research Com mittee. She chaired th e YALSA Selected Film an d V ideos for Y oung Adults Committee. E g o n W e is s , 84, lib ra ria n e m e ritu s o f th e U.S. Military A cadem y at W est Point, has died. He b ecam e assistant librarian at West Point in 1958, director in 1962, an d retired in 1987. D uring his years at W est Point, h e oversaw th e construction o f a n ew library an d in tro d u ced co m p u t­ erized tech n o lo g y to deliver integrated li­ brary services. D uring his ten u re, th e staff grew to m ore th an 70 an d he greatly ex ­ p a n d e d library services as w ell as th e s p e ­ cial collections o n military history. ■ (Washington Hotline cont. fr o m page 757) educational institutions and their employees. W hen w e act in good faith, reasonably b e­ lieving that our actions are fair use, in the unlikely event w e are actually sued over a use, w e will not have to pay statutory dam­ ages even if a court finds that w e were wrong. This demonstrates Congressional acknowl­ edgem ent of the importance of fair use and the importance o f our using it! SPECIAL NOTE: There are now several bills in the House and the Senate seeking to “fix” some of tire civil liberties problems of concern to the library community. Check out the following Web site on PATRIOT Act leg­ islation: www.ala.org/patriotfix or contact the ALA Office of Government Relations at (800) 941-8478. ■ http://www.ala.org/tribute http://www.ala.org/patriotfix