Re: E-Reserves question

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

The bare assertion of "functional equivalence" cannot substitute for the
statutory fair use analysis, in which commercial versus non-commercial plays
an important role.

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 3, 2011, at 7:13 PM, "Sandy Thatcher"
<sandy.thatcher@xxxxxxxxxxxxxxxxxxxx<mailto:sandy.thatcher@xxxxxxxxxxxxxxxxxx
du>> wrote:

At 8:14 PM +0000 9/3/11, Kevin Smith wrote:
But of course, in a full fair use analysis, e-reserves should be treated
differently than a commercially printed course pack.  The first factor will
look different, which was a point made earlier in this conversation.  By
conveniently ignoring the actual factors, the AAP FAQ avoids this kind of
obvious distinction and obscures the law.

Who said anything about "commercially printed"? The point was that e-reserves
are the functional equivalent of coursepacks, whether produced by a commercial
copyshop or an on-campus facility.




It is ridiculous to say that publishers tell requestors that some things may
be fair use.  I have never heard that response (although I have been told,
once, that there would be no charge) and it is wholly impossible if one is
using the CCC.  The CCC web page will sell permission to make a single copy of
a single page, with no mention of fair use.

Ridiculous? Perhaps you should ask the person at Duke University Press who
handles permissions requests how many times she has responded that permission
is not necessary because it is fair use in the press's view.

As for the CCC, what it charges for its blanket license takes into account
that some of the copying done on campuses would count as fair use.




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