RE: E-Reserves question

[Sandy Thatcher <sandy.thatcher@xxxxxxxxxxxxxxxxxxxx>]

At 4:15 PM -0400 9/3/11, Peter B. Hirtle wrote:
>On the issue of whether a whether a use is a first use or a subsequent use in
>the fair use analysis, I would direct Sandy to the position statement by
>Georgia Harper and Peggy Hoon on e-reserves found at
>http://www.ala.org/ala/issuesadvocacy/copyright/fairuse/fairuseandelectronicr
>eserves/index.cfm.  It makes no mention of subsequent use of the same item as
>part of the fair use analysis.  This makes sense, since there is also no
>mention of first or subsequent use in the statute, which simply states that
>copies made for use in the classroom are normally not an infringement of
>copyright.

Georgia Harper developed the idea of "first time use is fair use" in 
reference to the Classroom Guidelines' notion of "spontaneity," 
believing that permissions took so long to obtain that the first use 
could almost always be considered "spontaneous" whereas uses in 
subsequent years would not satisfy this criterion. You're right: it 
is not part of the law, nor are the Classroom Guidelines. But I know 
that it is a practice that has been widely adopted by libraries. 
Given the change in the technology of permissions, the justification 
for it no longer exists, as Harper explained in her footnote.



>
>We all believe that it is legal for a faculty member to assign a chapter or
>article as part of the requirements of a course.  And I think most people
>(other than publishers) believe that it should be legal for the student to
>make a personal copy of an assigned article or chapter, provided that the
>copying does not substitute for the purchase of the book or journal.  Since
>there are different students in the course every semester, the fair use clock
>naturally should reset for new students at the start of each term.

But I'll remind Peter that before the 1976 Copyright Act imported the 
reference to "multiple copies" into the preamble of Section 107, this 
kind of copying was not considered as fair use, Indeed, Judge Newman 
in the landmark Texaco case, decided well after the Act came into 
effect, famously explained:
We would seriously question whether the fair use analysis that has 
developed with respect to works of authorship alleged to use portions 
of copyrighted material is precisely applicable to copies produced by 
mechanical means. The traditional fair use analysis, now codified in 
section 107, developed in an effort to adjust the competing interests 
of the authors - the author of the original copyrighted work and the 
author of the secondary work that 'copies' a portion of the original 
work in the course
of producing what is claimed to be a new work. Mechanical 'copying' 
of an entire document, made readily feasible by the advent of 
xerography . . . , is obviously an activity entirely different from 
creating a work of authorship. Whatever social utility copying of 
this sort achieves, it is not concerned with creative authorship.




>
>Peter Hirtle


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