Re: E-Reserves question

[Kevin Smith <kevin.l.smith@xxxxxxxx>]

The problem is that you cannot escape the fair use analysis for e-reserves.
It is seldom necessary for physical reserves, but unavoidable in regard to the
"e" version.  It is still, of course, a matter of local policy.

Kevin L. Smith, M.L.S., J.D.
Director of Scholarly Communications
Duke University, Perkins Library
P.O. Box 90193
919-668-4451
kevin.l.smith@xxxxxxxx


On Aug 31, 2011, at 2:41 PM, "Croft, Janet B." <jbcroft@xxxxxx> wrote:

> If I could be a devil's advocate for another position -- the key phrase here
may be that the copies are now "the property of the user." And therefore, if
your institution allows professors to put "personal copies" on physical
reserve, there's a good argument for allowing e-reserves as well . Imagine if
the professor had brought them in to the reserve desk without telling you
where he originally obtained them? This gets away from the fair use
justification as well and takes it right back to local reserve policy.
>
> The CONTU rule od 5 for ILL borrowing has nothing to do with what happens to
the items after the library borrows them.
>
> Janet Brennan Croft
> Associate Professor
> Head of Access Services
> University of Oklahoma Libraries
> Bizzell 104NW
> Norman OK 73019
> 405-325-1918
> Fax 405-325-7618
> jbcroft@xxxxxx
> http://ou.academia.edu/JanetCroft/CurriculumVitae
> http://libraries.ou.edu/
> Editor of Mythlore http://www.mythsoc.org/mythlore.html
> Book Review Editor of Oklahoma Librarian
http://www.oklibs.org/oklibrarian/current/index.html
> "Humans need fantasy to be human. To be the place where the rising ape meets
the falling angel." -Terry Pratchett
>
> -----Original Message-----
> From: Kevin Smith [mailto:kevin.l.smith@xxxxxxxx]
> Sent: Wednesday, August 31, 2011 1:00 PM
> To: Chris Holobar; digital-copyright@xxxxxxxxxxxxxx
> Subject: RE: E-Reserves question
>
> Let me be a devil's advocate here for a moment.
>
> Regardless of whether or not the CONTU "suggestion of five" is followed,
section 108 of the copyright law itself, in the subsection that allows ILL
copying of articles, requires that "the copy... becomes the property of the
user, and the library or archives has had no notice that the copy would be
used for any purpose other than private study, scholarship or research."
>
> It seems to me that you could argue the question of whether placing an
article obtained through ILL on reserve violates this provision or not either
way.
> Perhaps making additional copies for e-reserve still falls into the purpose
of private study, etc.  But you could also argue that the emphasis on the
individual recipient earlier in the sentence indicates that "private" was
meant to refer to the study and research of that individual and no one else.
>
> If one takes the latter view, than the original copy may seem unauthorized,
and the fair use argument as a whole (for the e-reserve use) is dramatically
weakened.
>
> Kevin L. Smith, M.L.S., J.D.
> Director of Scholarly Communications
> Duke University, Perkins Library
> P.O. Box 90193
> Durham, NC 27708
> 919-668-4451
> kevin.l.smith@xxxxxxxx
>
>
> -----Original Message-----
> From: Chris Holobar [mailto:jch4@xxxxxxx]
> Sent: Wednesday, August 31, 2011 1:50 PM
> To: digital-copyright@xxxxxxxxxxxxxx
> Subject: Re: E-Reserves question
>
> Scott, the "rule of five" was suggested by the CONTU guidelines in the 1970s
and has become standard practice in many institutions, but it's not law.  At
any rate, your ILL dept. is probably keeping track of that.  If you're
conducting a fair use analysis, then the fact that these articles were
obtained through ILL probably doesn't matter all that much, and it certainly
isn't determinative.  That your faculty member or institution didn't purchase
the work(s) may weigh, slightly, against a finding of fair use based on factor
four (effect on the market for the works), but if the articles meet reasonable
tests for the other factors (nature of the use, nature of the works, amount of
the works), then they may well fall within fair use.
>
> Chris
>
> On 8/31/2011 12:57 PM, Laroi Lawton wrote:
>> Scott:
>> The law strongly recommends that I.L.L. departments follow "Rule of 5"
>> guidelines. Each calendar year, an I.L.L. department is allowed to
>> borrow a set number of articles from the most recent 5 years of one
>> journal title. Once the limit is reached, articles can still be
>> obtained from a copyright vendor for a fee.
>>
>> Secondly, and I am sure someone else will correct me on this First, to
>> archive materials not held by the library without permission and/or
>> payment of royalties would be a violation of copyright as it would be
>> considered "systematic copying".
>>
>> The faculty member in your scenario want to put 11 articles obtained
>> from ILL on E-reserves. Many campus libraries limit the amount of
>> articles either owned or not by the library that a faculty member can
>> put on
> E-Reserves as well.
>> Basically The electronic copying and scanning of copyright-protected
>> works for library reserve service are still debated and unsettled
>> areas of the law which may be addressed by the Courts or in future
>> revisions
> of the copyright law.
>>
>> I would check with your policy statements in this venue and work it
>> from there.
>>
>> LaRoi Lawton
>> Assistant Professor
>> Library&  Learning Resources
>> Bronx Community College
>> 2155 University Avenue
>> Bronx, NY 10453
>> Laroi.lawton@xxxxxxxxxxxx
>> 718.289.5348; 718.289.6471(fax)
>>
>> -----Original Message-----
>> From: scottd@xxxxxxxxxx [mailto:scottd@xxxxxxxxxx]
>> Sent: Wednesday, August 31, 2011 12:25 PM
>> To: digital-copyright@xxxxxxxxxxxxxx
>> Subject: E-Reserves question
>>
>> Faculty member wants to put 11 articles obtained from ILL on E-Reserves.
>> What are your thoughts on this?  Fair use or not?
>> --
>> David A. Scott
>> Access Services Librarian
>> Ferris Library for Information Technology&  Education
>> Office:  FLITE 140-D
>> 1010 Campus Drive, Big Rapids, MI  49307-2279
>> ph: (231) 591-3540 fax: (231) 591-2662 scottd@xxxxxxxxxx
>>
>>
>>
>
> --
>
> "I wouldn't want to live without strong misgivings." - John Yossarian
>
> Chris Holobar
> 102 Pattee
> Penn State University
> 814-865-1886
> jch4@xxxxxxx