|
Subject: RE: E-Reserves question From: Sandy Thatcher <sandy.thatcher@xxxxxxxxxxxxxxxxxxxx> Date: Mon, 5 Sep 2011 19:33:50 -0500 |
As Sandy well knows, there have been no court decisions regarding reserves either before or after the 1976 Act, so it would be difficult to conclude what constitutes "fair use" or even what the consensus regarding fair use may have been. The Georgia State case will provide some guidance on the matter. Until then, it would be dangerous to assume that court decisions based on commercial use of material or taking place in a commercial setting apply to educational institutions. The ALA statement on ereserves that I cited in my message is the best current guidance libraries have on fair use in a reserves setting.
On the GSU case, I am optimistic that the court will follow the plain letter of the law. A decision that encouraged libraries to pay exorbitant permission fees to the CCC would be disastrous for most academic publishing. In many universities, permission fees would come from the acquisition budget. Since one can't reduce expenditures on the "big deals," that money would come from the money spent for monographics. At Cornell, we narrowly avoided dropping a third of the university presses from our approval plan last year; a decision in favor of the AAP and CCC would most certainly mean that we would no longer acquire titles from those publishers.
Peter Hirtle
From: Sandy Thatcher [mailto:sandy.thatcher@xxxxxxxxxxxxxxxxxxxx] Sent: Saturday, September 03, 2011 7:54 PM To: Peter B. Hirtle; digital-copyright@xxxxxxxxxxxxxx Cc: digital-copyright@xxxxxxxxxxxxxx Subject: RE: E-Reserves question
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
-- 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)
-- 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
| Current Thread |
|---|
|
| <- Previous | Index | Next -> |
|---|---|---|
| RE: E-Reserves question, Peter B. Hirtle | Thread | RE: E-Reserves question, Kevin Smith |
| Re: E-Reserves question, Sandy Thatcher | Date | RE: E-Reserves question, Kevin Smith |
| Month |