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Subject: Re: E-Reserves question From: Sandy Thatcher <sandy.thatcher@xxxxxxxxxxxxxxxxxxxx> Date: Fri, 2 Sep 2011 11:12:47 -0500 |
If I may offer an alternative analysis, again, on the four factors:
1) The use is noncommercial/educational, which, while not determinative, is important. It's privileged by the 1976 copyright act itself, "including multiple copies of classroom use." One could argue that higher education is precisely the sort of societal benefit that the framers may have had in mind when they included limited terms of copyright in the Constitution. And, until Georgia State University, noncommercial use had not been litigated, and a decision in the GSU case has not yet been issued. This counts in favor of fair use.
2) Let's assume that these articles are primarily factual, for example, brief biographies of regional poets published in poetry journals. Or reviews of poetry published in poetry journals. Or much of what is published in science, history, and social and cultural criticism journals. This counts in favor of fair use.
3) You're using complete articles, which is common practice, because the 1000 word minimum limit in the educational guidelines (which were never adopted) is arbitrary and impractical. I agree that this can count against fair use, although, if the articles are from different journals, I'm not sure how heavily this would weigh. But, based on the case law that Sandy cites, I'll grant that this may count against fair use.
4) Since we don't know the journals involved, we really don't know the market impact with regard to licensing services. Critics of fair use are quick to invoke the mere existence of the CCC as evidence that anything can be licensed instantly. The CCC is complicit in encouraging this perception, however, in practice, it's simply not true. To engage in a bit of shameless self-promotion, in a study I authored with my colleague Andrew Marshall, using a sample size of about 3000 requests, we found that the CCC granted permission instantly for fewer than 50% of those requests. In total ( and after, in some cases, waiting weeks for a decision), permission was granted for only 64% of requests.
But let's assume that the journals in question do license through the CCC and that this counts against fair use. Then you have two of four factors weighing in favor of, or against, fair use. I would refer to the ARL statement on fair use:
"Each institution's combination of practices reflects its tolerance for risk against the background of prevailing beliefs about fair use. Understandably, "not knowing" makes many people uncomfortable, so Congress explicitly addressed this aspect of fair use. Section 504(c)(2) of the Copyright Act provides special protection to nonprofit libraries, educational institutions and their employees. When we act in good faith, reasonably believing that our actions are fair use, in the unlikely event we are actually sued over a use, we will not have to pay statutory damages even if a court finds that we were wrong. This demonstrates Congressional acknowledgement of the importance of fair use and the importance of our using it!"
The plaintiffs in the GSU case have not sued for compensatory/statutory damages, they've sued for injunctive relief. They've asked that GSU discontinue posting unlicensed readings.
My suggestion, Scott, is that you review the requests in light of the four factors, acting in good faith and in the best interest of your students.
Chris
On 9/1/2011 2:39 PM, Sandy Thatcher wrote:Well, just to offer a different analysis, let me play devil's advocate on the other side.
First,a query: isn't ILL a misnomer if the materials "loaned" are not returned? A better, truer description would be "document delivery."
On the four factors:
1) Yes, the use is for educational purposes, but that has never been determinative of fair use in itself. Is the use of the articles "transformative"? Not likely, unless the teacher embeds them in an anthology containing lots of the teacher's own linking and contextual material. Putting them on a syllabus does not mean the use is "transformative."
2) We don't know what these articles are. Perhaps they are from a poetry journal. That would count against fair use.
3) The amount used, presumably, is the full article. The original post said nothing about assigning excerpts from the articles. If the full articles are assigned, this factor goes against fair use.
4) Impact on the market? Remember that the Texaco, Kinko's, and MDS cases all found the existence of licensing services for articles like the CCC to be significant factors. Teachers in the MDS case filed affidavits testifying that they would not have used the articles if fees were charged. That didn't persuade the judges to find the use to be fair. Yes, those cases involved commercial companies, and this situation just involves a university, like GSU. But I suspect that difference is more important for factor 1 than for factor 4 analysis.
I would not want to place a lot of money on betting that the use of these 11 articles would be deemed fair use. We'll know more after the GSU case is decided.
Sandy Thatcher
At 1:28 PM -0400 9/1/11, Brandon Butler wrote: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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D.C., 20036
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Chris Holobar 102 Pattee Penn State University 814-865-1886 jch4@xxxxxxx
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