RE: E-Reserves question

[Sandy Thatcher <sandy.thatcher@xxxxxxxxxxxxxxxxxxxx>]

I don't see how anyone can read the AAP FAQ as holding that fair use 
does not apply to e-reserves at all.

E.g., this sentence under #3 does not say that: "The use of digitized 
copyrighted content in an e-reserve system does not exempt users from 
paying for the content, unless the copyright owner specifically 
agrees to its free use or the use in the particular circumstances 
falls within the boundaries of "fair use."

Hence there is no inconsistency in my supporting both the CONFU 
guidelines and the AAP FAQ.

Sandy Thatcher


At 8:45 PM +0000 9/2/11, Kevin Smith wrote:
>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/>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
><mailto:kevin.l.smith@xxxxxxxx>kevin.l.smith@xxxxxxxx
>
>
>-----Original Message-----
>From: Sandy Thatcher 
><mailto:[mailto:sandy.thatcher@xxxxxxxxxxxxxxxxxxxx]> 
>[mailto:sandy.thatcher@xxxxxxxxxxxxxxxxxxxx]
>
>Sent: Friday, September 02, 2011 12:41 PM
>To: <mailto:ESperr@xxxxxxx>ESperr@xxxxxxx; 
><mailto:digital-copyright@xxxxxxxxxxxxxx> 
>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, <mailto:ESperr@xxxxxxx>ESperr@xxxxxxx wrote:
>>Perhaps the CONFU "Fair use guidelines for electronic reserves systems"
>>(<http://copyright.lib.utexas.edu/rsrvguid.html>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
>><mailto:esperr@xxxxxxx>esperr@xxxxxxx
>>
>>______________________________________________________________________
>>This email has been scanned by the MessageLabs Email Security System.
>>For more information please visit 
>><http://www.messagelabs.com/email>http://www.messagelabs.com/email
>>______________________________________________________________________
>
>
>--
>Sanford G. Thatcher
>8201 Edgewater Drive
>Frisco, TX  75034-5514
>e-mail: 
><mailto:sandy.thatcher@xxxxxxxxxxxxxxxxxxxx>sandy.thatcher@xxxxxxxxxxxxxxxxxxxx
>Phone: (214) 705-1939
>Facebook: 
><http://www.facebook.com/sanford.thatcher>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: <mailto:sandy.thatcher@xxxxxxxxxxxxxxxxxxxx> 
>sandy.thatcher@xxxxxxxxxxxxxxxxxxxx
>Phone: (214) 705-1939
>Facebook: 
><http://www.facebook.com/sanford.thatcher>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)