End of Fair Use E-reserves?

Electronic / e-reserves have become an integral part of college life -- allowing professors and librarians to make materials easily accessible to students -- without the physical limitations of location or size of materials. You may have read recently about the concerns of the Association of American Publishers (AAP) of colleges and universities, as expressed in a letter (not legal action) sent to the University of California San Diego claiming that e-reserves violate "fair use" and thereby cut sales.

It would be a shame if using this technological option would preclude applying fair use analysis to e-reserves in the future. For many on-campus students, using e-reserves is a convenience -- but for online students, such as the LEEP library school program at the University of Illinois, they are often a necessity to receive required reading materials. As professors and librarians have worked together to make e-reserves available to students, hopefully these two powerful groups can continue to ensure students are able to use e-reserves.  Strong educational fair use arguments can be made, particularly when e-reserves are used by professors to offer spontaneous, current reading and when the copies are behind firewalls with password-only use.

As the Law Librarian blog has noted,

"What makes this particular investigation noteworthy is that the investigation centers around the use of electronic materials as part of course offerings rather than the appropriation of copyrighted materials through printed course packets.  Previous enforcement efforts have been aimed at Kinko's and other commercial duplicators." [Link added by Raizel]

The publishers want to be able to review reading lists by professors to allow for "transparency" arguing that

"Because it happens behind university firewalls, [publishers] can't determine how much material is actually being used.... When [AAP] obtained the university reading list for two terms, we found a number of things that could not be justified under the most extreme definition of fair use."

The ideological viewpoint that all materials need permissions and payments is being strongly pushed by the publishing industry. The Copyright Clearance Center, the main facilitator for copyright permissions, has recently issued a “best practices” guideto e-reserves. The guidelines make clear that the Copyright Clearance Center does not believe that copyright standards for e-reserves should be any different than for traditional print materials.

Comments

[Mark]

It is interesting that CCC in their best practices document claims under "E-Reserves Require the Same Permissions..." that "there are obvious savings--financial and environmental--from eliminating paper copies...." Is that why they usually charge a significantly larger amount to use an article electronically vs. in paper? Someone has to recoup the supposed savings that the library is experiencing, lord help us if it's the libraries themselves though.

I did E-Reserves work for over 4 years and we were a pretty conservative institution as to what we posted. So, I see some good things in the CCC best practices, but even then I disagree with some parts of it.

And that section, "Know What You Paid For," is far easier said than done when it comes to electronic databases.

[Karen Coyle]

I don't think it's quite accurate to say that the CCC sees e-reserves as being the same as traditional print. They say specifically that one should treat e-reserves the same as course packs, which means that permission is required (as well as any payment that goes along with that permission). Paper reserves are not established on a permission basis, but make use of a fair use analysis. The argument that AAP is making is that professors are using e-reserves like course packs -- that is, they are primary reading for the course, not "supplemental" reading. Based on this, the e-reserves are a substitute for the purchase of reading materials, and permission should be obtained. The libraries are arguing that the items on e-reserve are the same as the items that would have been on reserve in the paper environment. So the issue is kind of a "he said, she said" one until we see an analysis of the actual nature of the e-reserves that AAP is protesting.

kc