RE: E-Reserves question

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

I think the technological point behind the analogy here is nowhere near as
clear as Sandy is making it.  A digital copy of an e-reserve article is placed
on a server.  In many cases no one will look at that article or print it,
unfortunately.  Sometimes class members will access it, and then an additional
copy is made for each student who retrieves it. The chances that all class
members will be supplied with copies simultaneously is infinitesimal.

Remember, those six print copies were on physical reserve in anticipation of
students coming and making their own personal copies from them.

I think this is rather like the assertion of the recording industry that
"making available" is the same as distribution.

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: Sandy Thatcher [mailto:sandy.thatcher@xxxxxxxxxxxxxxxxxxxx]
Sent: Thursday, September 01, 2011 11:47 AM
To: Croft, Janet B.
Cc: digital-copyright@xxxxxxxxxxxxxx
Subject: RE: E-Reserves question

But the old standard for print reserves promulgated by the ALA itself was a
limit of six copies as "reasonable" to be placed on reserve. By definition,
e-reserves provide copies simultaneously to every member of the class. Hence
the analogy still doesn't stand up.



At 1:33 PM +0000 9/1/11, Croft, Janet B. wrote:
>No, but a professor could bring in a short article and ask for several
>copies to be made to put on physical reserve. That wouldn't be unusual.
>And a professor can ask, for example, for a chapter of a book he owns
>to be scanned for electronic reserve. As long as you have no reason to
>doubt his ownership, that's reasonable.
>
>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: Sandy Thatcher [mailto:sandy.thatcher@xxxxxxxxxxxxxxxxxxxx]
>Sent: Wednesday, August 31, 2011 10:37 PM
>To: Croft, Janet B.; Kevin Smith; Chris Holobar;
>digital-copyright@xxxxxxxxxxxxxx
>Subject: RE: E-Reserves question
>
>Are we to believe that a professor would bring in enough physical
>copies to place on reserve so that every member of the class could read
>them simultaneously? The analogy with physical reserves would hold only
>if this were the case.
>
>Sandy Thatcher
>
>
>At 6:40 PM +0000 8/31/11, Croft, Janet B. 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
>
>
>--
>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
>
>"If a book is worth reading, it is worth buying."-John Ruskin (1865)
>
>"The reason why so few good books are written is that so few people who
>can write know anything."-Walter Bagehot (1853)


--
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

"If a book is worth reading, it is worth buying."-John Ruskin (1865)

"The reason why so few good books are written is that so few people who can
write know anything."-Walter Bagehot (1853)