Re: E-Reserves question

[Brandon Butler <brandon@xxxxxxx>]

I just want to endorse Chris Holobar's analysis, as well as Kevin Smith's
second round of devilish advocacy. If each link in the chain of use is
legitimate, then the whole thing should be legitimate.

1. If the articles the prof obtained via ILL became his property (and they're
the result of an otherwise legit ILL process), then the ILL transaction was
legitimate, and now the prof has all the rights of a legitimate copy owner.
(And by the way, CONTU and the Rule of 5, as has been said, are not the law.
Convenient guidance (sometimes) for folks looking for bright lines, but not
the law.)

2. Among the rights of a lawful owner of a copy is the right to make fair uses
of that copy. Among the fair uses he can make, arguably, is making selections
from the articles available to students on an e-reserves page. The use is for
teaching, criticism, and commentary (favored purposes in 107); the works are
likely published and non-fiction (favored types of work for fair use); the
amounts used are (or can be) tailored to the legitimate purpose (i.e., the
professor has chosen excerpts relevant to his teaching plan, or has assigned
whole articles only where appropriate); and the effect on the market (given
the availability of physical reserves as an unpaid alternative and evidence
from the GSU trial about professors' unwillingness to assign these works if it
will incur a charge to students or the library) is little or none. Just like
ILL, this is a use that fills in the gap where a purchase (either via
textbook, a course pack, or some other licensed option) doesn't make sense.

I think the original questioner was mainly concerned that the copies might be
'tainted' by their origins in ILL. That seems to me to be the easiest worry to
assuage. Add a robust legal rationale for e-reserves themselves, and you've
got a pretty defensible choice to make these articles available to students in
the class.


Best,
Brandon

Brandon Butler | Director of Public Policy Initiatives | Association of
Research Libraries | brandon@xxxxxxx | http://policynotes.arl.org | @ARLpolicy
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