Re: E-Reserves question

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

While it is true that the AAP FAQ contains that rhetorical acknowledgement of
fair use, the rest of the document indicates how meaningless it is.  In
section 5, when the document is responding to the question of how fair use
actually applies to e-reserves, there are three examples of "facts and
circumstances" to be evaluated.  In each case the conclusion is that fair use
is "unlikely."  No positive example of a fair use is given and there is no
reference to any four factor analysis.  This contrasts with the CONFU
guidelines which, although extremely restrictive, do allow that single
articles and short excerpts are potential candidates for fair uses.  The AAP,
on the other hand, says that any amount "more than minimal" requires
permission.  Since courts have often recognized that "de minimis" use does not
implicate copyright or fair use at all, this formulation is a pretty explicit
rejection of fair use, in spite of the pro forma acknowledgement.

This is hardly a surprise.  Whereas CONFU is a statement based on negotiation,
and therefore forged through give and take, the AAP FAQ reflects no such
constraint.  It is simply a statement of self-interest, not a serious attempt
to apply the law.  Note also that all of the further sources of information
that are referenced are similarly statements from industry groups, not
negotiated guidelines.  While I am not a big fan of such guidelines, they at
least reflect a good faith attempt to deal with the real issues librarians and
faculty members confront, which is lacking in the AAP statement.


Kevin L. Smith, M.L.S., J.D.
Director of Scholarly Communications
Duke University, Perkins Library
P.O. Box 90193
919-668-4451
kevin.l.smith@xxxxxxxx<mailto:kevin.l.smith@xxxxxxxx>


On Sep 2, 2011, at 5:14 PM, "Sandy Thatcher"
<sandy.thatcher@xxxxxxxxxxxxxxxxxxxx<mailto:sandy.thatcher@xxxxxxxxxxxxxxxxxx
du>> wrote:

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<mailto:kevin.l.smith@xxxxxxxx>

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