Copyright for Librarians

Libraries, like individuals, have rights under 17 U.S.C. Section 107 to make fair uses of copyrighted works (1).  Most commonly they exercise these rights in one or another form with course reserves.

Reserving works for limited use

Since course reserves are an extension of the classroom, its copying must conform with fair use principles. There is no part of Section 108 that addresses this kind of copying. Complying with fair use is not an easy task because fair use can be hard to understand. For example, Section 107 explicitly cites the practice of making multiple copies for classroom use as an example of fair use, but the provision also requires the user to consider the famous "four factors" stated in the statute before deciding whether a particular use is fair:

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• The nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• The effect of the use upon the potential market for or value of the copyrighted work

Not very helpful, are they?

Still at one time universities thought they knew what fair use for course reserves was. Now, however, these commonly held beliefs have been challenged by several lawsuits over the scope of fair use (2). These lawsuits raise serious concerns.

Footnotes:

1 17 U.S.C. Section108 (f)(4) (Section 108 generally), which protects certain library reproduction and distribution activities, explicitly preserves any rights libraries may have under Section 107. Fair use rights may be different from and/or more extensive than rights under Section 108.

2 Addison-Wesley Publishers Co., Inc. v. New York University, (settled out of court); Basic Books, Inc. v. Kinko's Graphics Corporation, 758 F. Supp. 1522 (S.D.N.Y. 1991); American Geophysical Union v. Texaco, Inc., 802 F.Supp.1 (S.D.N.Y. 1992); 37 F.3d 881 (2nd Cir. 1994); Princeton University Press v. Michigan Document Services, Inc., 1996 WL 54741 (6th Cir. 1996) [WITHDRAWN]; 1996 FED App. 0357P (6th Cir.); Cambridge University Press v. Becker (2018 remanded back to District Court). These cases concern faculty prepared "coursepacks" containing supplemental reading materials for students and research copies (Texaco).