Walking a Fine Line

This invited contribution to the theme of Publication comes from Mary S. Laskowski, who is Head of Collection Management Services at the University Library. In response to an earlier post on the IPRH blog about e-reserves and fair use, Mary shares a librarian’s perspective.  —bM

The University Library at the University of Illinois, as with all academic research libraries, walks a fine line between meeting the needs of patrons and satisfying all pertinent legal and contractual obligations. As noted in the Code of Ethics of the American Library Association,

“We respect intellectual property rights and advocate balance between the interests of information users and rightsholders.”

The e-reserve service, designed to provide electronic access to relevant course readings at the request of the faculty, faces that challenge on a daily basis.

choice

There is a common, prevailing misconception among the academic community that if a use is educational it is always permissible. Certainly it is true that educational use of copyrighted material is privileged when considering the four factors of fair use from § 107 . Limitations on exclusive rights: Fair use, which are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

However, all four factors must be evaluated as part of a whole, as no one factor can trump the other three.

registerLibrary patrons, whether they realize it or not, are accustomed to libraries invoking the first sale doctrine to allow them to borrow content free of charge that they have not purchased. In the case of e-reserve services, it is important to distinguish between the first sale doctrine and fair use.

Although libraries purchase source material in support of e-reserves whenever possible, we are not then lending that original source in its original form; we are digitizing it and providing access to parts of it. In other cases, we are providing content already in digital form which we’ve licensed from a third party, and are bound by any license restrictions in the contracts signed.

Much as the Sony Corp. of America v. Universal City Studios, Inc. 464 U.S. 417 lawsuit in 1984 (which determined that timeshifting the viewing of media content through the use of VCRs is fair use and not an infringement of copyright) set the precedent for the future of the media industry as well as the role libraries could play in providing access to that content, the recent Georgia State University e-reserve lawsuit (Cambridge University Press et al. v. Becker et al.) is setting the tone for academic library e-reserve services.

Many useful summaries and links to the decisions and opinions in that case are provided in a libguide by the Georgia State University, College of Law, Law Library.

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The decision is generally viewed as a victory for Georgia State and academic libraries, most notably in that few infractions were found and the burden rests largely on publishers and rightsholders to make digital rights for content readily and cost-effectively available or the fair use factors weigh more heavily in favor of the institution.

A problematic outcome, however, is the introduction of what many have interpreted to be a bright line rule of ten percent or less (potentially less for textbook material, though none were identified in this case) to what had been a landscape very open to interpretation in terms of the amount of a work that is permissible as fair use. Though the judge herself indicates that there is intentionally not a bright line rule, as fair use depends on a case-by-case analysis, the clear use of specific percentages has led to many libraries revising internal policies regarding fair use analysis.

Interestingly, the idea of transformative use, which is stressed in the library community best practices in the Code of Best Practices in Fair Use for Academic and Research Libraries, was not considered a factor in the decision.

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What this means in daily practice is that e-reserve services suddenly represent a new marketplace for both libraries and publishers, and that many practices are changing rapidly to adhere to new policies, new systems, and new opportunities.

The University Library at the University of Illinois, for example, has been piloting the use of a new third-party vendor to provide access to readings that are deemed to exceed fair use thresholds, and is absorbing the cost of all access for students. Regardless of changing policies and procedures, of key importance is that libraries continue to advocate exercising fair use as the basis for robust e-reserve services, while remaining cognizant of the potential legal challenges to such use.

Tightrope still 2

Mary S. Laskowski is Head of Collection Management Services at the University Library, University of Illinois at Urbana-Champaign. Mary has served on Faculty Senate, and is currently a member of the Faculty Advisory Committee. Her research interests include the evolution of library services to better meet current and future needs.

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