RE: E-Reserves question

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

There has been an interesting twist in this discussion.  I asked about the
part of the CONFU guidelines that states that reuse of e-reserve material in a
"subsequent" semester requires permission.  Whether or not one accepts that
position, and however one interprets it, it does imply at least the
possibility that the initial use could be fair use.  In this message, Sandy
changes the terms a bit and refers to a "first use is fair use" rule, which I
have never heard of before.  Sandy doesn't like this idea, and the AAP
statement to which he links firmly rejects it.  If this is interpreted to mean
that *any* initial use is can be considered fair use without further analysis,
than I agree that it is inappropriate but I know of no institution
implementing such a policy.  But it looks rather like Sandy and the AAP are
saying that there is no fair use for e-reserves at all, a position which makes
the issue of subsequent semesters moot.  I think, and hope that the GSU court
will agree, that the appropriate practice falls somewhere between these two
extremes (the latter extreme, of course, is what the GSU plaintiffs are
arguing).  In any case, I don't understand how Sandy can coherently endorse
both CONFU and the AAP statement.

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

From: Sandy Thatcher [mailto:sandy.thatcher@xxxxxxxxxxxxxxxxxxxx]
Sent: Friday, September 02, 2011 4:13 PM
To: Kevin Smith; ESperr@xxxxxxx; digital-copyright@xxxxxxxxxxxxxx
Subject: RE: E-Reserves question

The survey was carried out by a now defunct Copyright Education Committee of
the AAP on which i served. It covered over 100 libraries in some 25 states. I
should explain what "survey" meant here. It wasn't a questionnaire but rather
a search conducted by members of the Committee of university web sites to
determine what kinds of policies regarding e-reserves were in place. I cannot
off the top of my head remember exactly how many library policies tracked the
CONFU guidelines closely, but I'd guess over half of them did.

One cannot infer from the stated policies, however, just how implementation of
them occurred, and i have no information on that score to offer.

This "survey" was conducted by the Committee as background for the AAP
Copyright Committee's  consideration of what to say about e-reserves. A task
force was setup to draft a policy, which ended up taking the form of this FAQ:
http://www.publishers.org/GSU/ereservesqanda/. I also served on this task
force.

On your point about "first use is fair use," I believe it is accurate to say
that this idea originated with Georgia Harper at the University of Texas and
was widely adopted by libraries. Our "survey" showed it to be prevalent as
part of many libraries' policies at the time. But in an article title "Digital
Distribution of Educational Materials" a few years ago, Harper herself
repudiated this doctrine, arguing as follows in a footnote:

 The recent introduction by CCC of its Blackboard tool allowing educators to
obtain and pay for permission "instantly" has theoretically eliminated the
logical justification underlying the Classroom Guidelines' "spontaneity"
requirement and underlying the claim for "first time fair use,"  which was
based on an historically significant time delay in getting permission (weeks,
if not months). Before the introduction of the instant permissions tool in
Blackboard, one would evaluate whether a use were fair (for example, whether
it was the first time the professor used these materials for this class)
before seeking permission from CCC. Now, however, with its rationale gone,
first time fair use may be insupportable. It seems to make more sense to check
CCC first and only if permission is not available there, consider whether the
use might be fair before undertaking the still time-consuming and potentially
unfruitful search for the copyright owner.


No publisher that I know of accepts the validity of the "first use is fair
use" doctrine, so it may be said that libraries following this policy have
gotten a free ride for many years. If Georgia Harper no longer thinks it is
defensible, do you think a judge would?

Sandy Thatcher


At 6:05 PM +0000 9/2/11, Kevin Smith wrote:
Sandy,

Can you provide a citation where the results of that survey are available?
Ten years is a long time, of course, but I would be interested not only in
what libraries say about the impact of the CONFU guidelines but also about
their actual implementation of them.  For example, the guidelines say that
permission should be sought if the same material is reused in a subsequent
semester, and I know that many schools say they implement that principle.  But
I have also heard lots of theories about what "subsequent" means and whether
or not fair use "re-sets" after some period of non-use.  I am also highly
skeptical, based on anecdotal evidence only, that schools serious implement
the point you are discussing about the amount of a class's total assigned
reading that is placed on reserve.  To know that would require interrogating
faculty, and I bet most e-reserve staff members are unwilling to do that.

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<mailto:kevin.l.smith@xxxxxxxx>


-----Original Message-----
From: Sandy Thatcher
[mailto:sandy.thatcher@xxxxxxxxxxxxxxxxxxxx]<mailto:[mailto:sandy.thatcher@al
umni.princeton.edu]>
Sent: Friday, September 02, 2011 12:41 PM
To: ESperr@xxxxxxx<mailto:ESperr@xxxxxxx>;
digital-copyright@xxxxxxxxxxxxxx<mailto:digital-copyright@xxxxxxxxxxxxxx>
Subject: Re: E-Reserves question

Interesting that you should mention CONFU's e-reserve guidelines.
Yours is not the only library whose policy has been influenced by them. In
fact, in a survey I helped conduct some ten years ago, it became clear that
the CONFU standard, though never officially endorsed by CONFU itself, has
become a de facto standard throughout the country.

The CONFU guidelines were drafted by Kenny Crews (who was an expert witness in
the GSU case). I was the primary representative for the AAUP in negotiating
language that would allow the AAUP to endorse the guidelines, and the language
of point 4 you quote was something that I recommended as key to making it
possible for the AAUP to support the guidelines. The guidelines were endorsed
not only by the AAUP but by a number of other groups including the ACLS and
several smaller library associations, but not the ARL or ALA. They, like the
AAP, felt they could succeed in lobbying Congress to pass legislation more
favorable to their interests. That, of course, did not happen. A major
opportunity was lost, in my opinion, but I was pleased that many libraries
endorsed the guidelines in de facto fashion anyway.

Sandy Thatcher



At 11:43 AM -0400 9/2/11, ESperr@xxxxxxx<mailto:ESperr@xxxxxxx> wrote:
>Perhaps the CONFU "Fair use guidelines for electronic reserves systems"
>(http://copyright.lib.utexas.edu/rsrvguid.html) might be of some
>assistance? I certainly hope so, as our own campus policy has been
>informed by them. All the caveats noted for CONTU, etc. about this not
>being "the law" still apply of course.
>
>Under "scope", we see point 3: "Electronic reserve systems should not
>include any material unless the instructor, the library, or another
>unit of the educational institution possesses a lawfully obtained
>copy." This would seem to indicate that ILL is a-ok.
>
>However, I *might* be a little worried about point 4: "The total amount
>of material included in electronic reserve systems for a specific
>course as a matter of fair use should be a small proportion of the
>total assigned reading for a particular course." Depending on the total
>reading assigned, eleven articles seems to shade close to coursepack
>territory -- a place where factor four might loom larger...
>
>
>    >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
>
>
>Ed Sperr, M.L.I.S.
>Copyright and Electronic Resources Officer St. George's University
>esperr@xxxxxxx<mailto:esperr@xxxxxxx>
>
>______________________________________________________________________
>This email has been scanned by the MessageLabs Email Security System.
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--
Sanford G. Thatcher
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--
Sanford G. Thatcher
8201 Edgewater Drive
Frisco, TX  75034-5514
e-mail:
sandy.thatcher@xxxxxxxxxxxxxxxxxxxx<mailto:sandy.thatcher@xxxxxxxxxxxxxxxxxxx
u>
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)