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Subject: RE: E-Reserves question From: Sandy Thatcher <sandy.thatcher@xxxxxxxxxxxxxxxxxxxx> Date: Wed, 31 Aug 2011 22:36:31 -0500 |
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:E-Reserves as well.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 onof the copyright law.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
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
-- Sanford G. Thatcher 8201 Edgewater Drive Frisco, TX 75034-5514 e-mail: sandy.thatcher@xxxxxxxxxxxxxxxxxxxx Phone: (214) 705-1939 Facebook: http://www.facebook.com/sanford.thatcher
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