RE: Do You Require Proof of Copyright for E-reserves?

["John T. Mitchell" <John@xxxxxxxxxxxxxxxxxx>]

You make a good point about taking a cautious approach.  Princeton is an
awful decision (though the case dealt more with the profit factor than
the dicta you quote), and the dissent certainly had the better argument,
in my view (something like (to roughly paraphrase) if a professor could
make a copy under fair use, it doesn't make it any less fair use that a
work-study student made a buck operating the photocopier).  From your
standpoint, it makes sense to assume there will be bad decisions, and
you don't want to be in the Princeton Univ. Press' shoes when that
happens.  Of course, whether enough is copied to impact sales is another
fair use factor.  My point was simply that if I were a professor, I
would not want to be placed in the position of having to "prove" to the
university that I had "permission from Congress" (i.e. under Section 107
of the Copyright Act), which requires a legal assessment of the facts,
and then find that the 6th Circuit disagreed with my assessment and the
school is looking to me for indemnification.  Better for me to rely on
the librarian's sound policy and procedural decisions on behalf of the
university than to place my retirement nest egg at risk.

-----Original Message-----
From: Laurie Urquiaga [mailto:Urquiagal@xxxxxxxxxxxxxxx] 

John, your response is correct, assuming that e-reserve is a 'fair use.'
However, I'm not sure that that is a correct assumption.  In the latest
case on point, MDS v. Princeton (6th Cir., 1996), the majority opinion
says: "As to the proposition that it would be fair use for the students
or professors to make their own copies, the issue is by no means free
from doubt."  If the fair use character of personal copies is in
question, then it is by no means clear that library "copies" that
adversely impact textbook sales would be considered fair at all.  I
believe that it is from this position that Rosalind is asking her
question.  Given that most institutions are highly risk-averse, there is
great pressure on academic librarians to make the "right" policy and
procedural decisions.

>>> "John T. Mitchell" <John@xxxxxxxxxxxxxxxxxx> 1/31/03 1:48:22 PM
With all due respect, "proof of permission" is somewhat of an oxymoron
when it comes to most lawful uses under copyright law.  The whole point
of the provisions in Sections 107-121 and 1008 of the Copyright Act (and
particularly Section 107 - fair use applicable to e-reserves) is that
you don't need permission.

-----Original Message-----
From: Rosalind Tedford
We are looking at whether to have faculty sign a form stating they have
copyright permission for items on e-reserves used for more than one
semester or whether to require them to show proof they have this
permission.