Radio Jim : E-Reserves

E-Reserves - rough notes

Electronic Reserve

Lois Wasoff

Outside Intellectual Property Counsel

Houghton Mifflin

1:15 pm May 19, 2004

E-reserves

As commonly used – digitized course readings available usually on a library network or a department network with restricted access to students enrolled in a class. This is the digital successor to the traditional paper reserves [e.g. coursepaks].

Issues

Substitute for traditional course pack

Academic has developed own definition (broad use) of fair use for e-reserves
Publishers must develop own positions and if necessary defend in legal proceedings
1994 – Assoc. of Res. Libraries and NACS – forum – presentations of early e-reserves systems.

Was skepticism of practical application of this technology
Was necessary to have expensive scanning equipment, storage, broadband, etc – mostly out of reach of typical libraries
Today -those barriers have disappeared

Question of how these reserves affect or affected by fair use,(CONFU) part of IP group of Clinton’s Information Infrastructure Task Force

Working Group on E-reserve uses did not succeed in creating guidelines that were generally acceptable [see URL for guidelines in handout]
Some academic and Libraries accepted – publishers and ARL did not
But, these have served as de facto standard so they are still relevant
Problems from publishers perspective

Too generous length allowances
No provisions for affective protections
Ah, a number of probs

Guidelines said amount of material for a course should be “a small portion of total proposed readings for a course”
There was a concern that e-reserves would become an effective substitute for traditional course material (and gets around the course pak solution)

E-reserve systems continue to grow dramatically

1999 – (no study since then)
A year ago – preliminary review of college web sites by AAP –

Vast majority offer e-reserve systems
Very few have detailed guidelines
Remember, using something in e-reserves generally means you are

Scanning it
Posting it
Allowing for further copying

Most guidelines just used the term fair use without defining what fair use meant
Where password protections exist – their use may not be known to copyright owners at all [so they don’t have to register their work but the users have to advertise protective measures taken?]
One example saw material placed on reserve for 90 courses with average amount of 300 pages (max 1800 pages on reserve)
Average from single work was 33 pages
Some of these materials are used repeatedly

What does Academic community say about Fair Use?

ARL has own statement/framework

[check printed materials for link]
Acknowledges e-resources being used – but suggests checking licenses to make sure they are broad enough to use in e-reserve systems (ARL’s suggestion is made to ensure the libraries don’t pay for material they already have license to use)
Character of use

ARL framework – in support of non-profit education

Factors such as relevance to teaching objective – may make use of entire work appropriate
Market factor

Many e-reserve use have supplementary material, e-reserve use is appropriate

ARL reminds 504(c ) protection is available

For those reasons the academic community thinks e-reserves are appropriate fair use
Coursepak decision say copying of journal articles, etc clearly say this is inappropriate
Litigation on e-reserves may be necessary though this is not a necessarily attractive option

AAP positions

A set of FAQ’s will be posted on web site with regard to e-reserves to stake out AAP’s position.
Preview

For copyright purposes how do e-reserves differ from coursepaks

Where the readings substitute for a printed coursepak nothing differs in terms of copyright treatment. Material included must have permissions granted

Does restricted access make this fair use

The answer will be NO
Password protection only assures that students accessing system do not exceed numbers for whom fees are paid

Very difficult to get timely information on use of these reserves

May need legislation requiring Universities to post materials being used in e-reserves
Some sunshine here is necessary in order to enforce copyrights

In addition, the publishers have an obligation –

The industry have to make mechanisms for granting permissions accessible

In conclusion, as e-reserves become more common, standards have been established and some of those standard practices are treatment of e-reserve material as fair use and therefore requiring no permissions or payment.

Our hope is that the publishing community will change that.

Question

How bring a case

Collect examples. Bringing a case is difficult because

You are pursing state university (sovereign immunity)
Pursuing customer

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