Together with course management systems, like Canvas, and faculty and departmental web servers, e-reserves have all but replaced paper coursepacks on college campuses. Reserves will always involve copying, but will also involve at least one and perhaps both the performance rights (public display and/or performance), and a public distribution. How does the statutory fair use test apply to copies made to go on reserve?
The four fair use factors
Let's consider a request to place six articles and a book chapter on reserve. Keep these points in mind:
Case-by-case balancing means that every situation, being different, conceivably results in a different outcome. This imprecision and unpredictability can make it difficult to determine what is and what is not a fair use, but the alternatives, asking for permission in all but the most obvious cases, or ignoring the need for permission by assuming that all educational use is fair, could both prove to be costly choices. So, learning to be more comfortable with the fair use analysis is an important step towards soundly operating a reserves system.
Applying the four fair use factors
Please read using the four factor fair use test before proceeding. It will describe generally how "weighing and balancing" works. Remember, we are analyzing articles and book chapters, each one individually. As always, the hallmarks of fair use involve adequate protection of the copyright owner's interest.
As discussed more fully in using the four factor fair use test, a publisher's willingness to license copies or the existence of easy ways to assess and collect royalties, is not by itself enough to defeat a fair use defense in a nonprofit setting (4).
For our example, of the first three factors, only the third factor arguably weighs against a finding of fair use, but in the nonprofit context, and with an amount that is appropriate in light of the intended use, there is ample basis under Sony and Williams for a finding of fair use. In considering the fourth factor, the use would have to be described as an otherwise fair use so far, so we could expect that for a first time use at least, a court might disregard potential licensing or permission fees, not permitting them to convert this otherwise fair use into an unfair use. On the other hand, if these same materials were copied semester after semester, by the same professor for the same course, a court might be more inclined to take those lost revenues into account.
Who makes the copies?
This analysis would be the same whether the library or a faculty member makes the copies. Either would be exercising the same right under the same statute. In effect, the library acts as agent of the faculty member who is an agent of the university.
What happens to the copies at the end of the semester?
Section 107 does not mention how long a copy may be retained, or whether at some point, a fair use copy ceases to be fair solely because of the passage of time (5). Nevertheless, there is a widespread belief that libraries should not retain a copy longer than one semester. Thus, even though it may not be logical to infer a time limit on fair use from the statute itself, it appears advisable nonetheless to obtain permission for uses beyond one semester.
2 Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984) (making copies for timeshifting television broadcasts for personal use is not an infringement); Williams & Wilkins v. United States, 487 F.2d 1345 (Ct. Cl. 1973), affirmed by an equally divided Court, 420 U.S. 376 (1975). But see American Geophysical Union v. Texaco, Inc., 37 F.3d 881 (2nd Cir. 1994). The court was analyzing whether copying scholarly articles in their entirety for research purposes was a fair use. Most observers would have thought that copying to facilitate research would give Texaco an advantage under the first factor which would in turn affect the weight given to the third factor. But the court characterized this typical research copying as systematic, institutional and archival, that is, as creating a personal archive of interesting articles for possible future use, and decided that such copying made the first factor weigh against a finding of fair use. Without a favorable finding under the first factor, Texaco got "hung out to dry" on the third and fourth factors as well. The court held that copying entire articles caused the third factor to weigh against fair use. This emphasizes the importance of the interplay between the factors in the analysis.
3 The decision in Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991) is generally credited with causing publishers to be more responsive to requests for permission to copy. Jane C. Ginsburg, "Reproduction of Protected Works for University Research or Teaching," 39 J. Copyright Soc'y 181, 210-211 (1992).
5 One case that touched on this issue, although tangentially, was Sony, 464 U.S. 417 (1984). The Sony court discussed "timeshifting" and acknowledged that sometimes copies made for more convenient viewing at another time are retained indefinitely. While indicating that temporary use for the convenience of viewers is fair use, the court did not go so far as to suggest that only temporary uses are fair or to put any time limit on the retention of copies. This recognition that retention occurs coupled with the absence of any specific exclusion of retention from the Court's determination of fair use, may well indicate a tacit acceptance of some amount of retention; however, such tacit acceptance, if reasonably inferred at all, is relatively weak support for the idea that there is no time limit on fair use, and it might quickly disappear if the issue were addressed directly as it was in the Texaco case.
The Texaco decision addressed copy retention when it found that research copies for personal files constituted archiving and weighed against fair use (first factor). The implications of this holding for e-reserves are not at all clear because the contexts are so different. On the one hand, e-reserves use is qualitatively distinct from building a personal collection of articles that may or may not ever be used, yet e-reserves that are retained indefinitely could be characterized as archival either in the hands of the faculty member or the library.
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