Copyright & E-Reserves Dave Hansen November 16, 2012

Berkeley Digital Library Copyright Project Goal: “to investigate copyright obstacles faced by libraries and other like-minded organizations in their efforts to realize the full potential of present and future digital library initiatives. Our efforts are concentrated on both the obstacles themselves and the range of possible legal, technological, social, and market-based solutions to overcome them.” Issues: orphan works library privileges digital lending metadata ownership

Structure of Copyright Title 17, United States Code: Exclusive rights of author (§ 106)Limitations on exclusive rights Reproduce Prepare derivative works Distribute to public Perform publicly Display publicly For sound recordings, perform over digital network § 107 – Fair use § 108 – Libraries and Archives § 109 – “First sale” § 110 – Non-profit Performances §§ – further refinement

Fair Use § 107 – “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

Fair Use § 107 – “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (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. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Coursepacks 1982: Assoc. of American Publishers (AAP) led group that sued nine NYU faculty members to prevent their copying of course anthologies in print Case settled on terms favorable to publishers; Created guidelines for how content could be used in coursepacks Publishers started sending cease and desist letters to other universities insisting on same terms

Coursepacks Basic Books, Inc. v. Kinkos Graphics Corp. (S.D.N.Y. 1991) excerpts vary in length from 14 to 110 pages, compiled in five numbered packets ("anthologies") sold to students of NYU and Columbia Univ. Who does the copying matters: “The use of the Kinko's packets, in the hands of the students, was no doubt educational. However, the use in the hands of Kinko's employees is commercial.”

Coursepacks Princeton University Press v. Michigan Document Services (6 th Cir. 1996) “MDS is aa commercial copyshop that reproduced substantial segments of copyrighted works of scholarship, bound the copies into "coursepacks," and sold the coursepacks to students for use in fulfilling reading assignments given by professors at the University of Michigan,” Copying often done at direction of U Mich. faculty Other suits – Copyright Clearance Center and others financed or facilitated at least five similar suits between 1999 and today

Cambridge Univ. Press v. Becker (Ga. State Univ.) Cambridge University Press, SAGE Publications, and Oxford University Press filed lawsuit in 2008 Copyright Clearance Center apparently funds 50% of the suit Named as defendants four Georgia State University administrators and managers Contested Georgia State University e-reserves system for providing access to copyrighted works

Cambridge Univ. Press v. Becker (Ga. State Univ.) Originally 99 claims of infringement across three semesters’ worth of classes Reduced to 75 claims submitted to the court to decide Of those, only 5 valid infringement claims from the use of 4 books WHY?

Cambridge Univ. Press v. Becker (Ga. State Univ.) WHY? Ownership and Registration: 16 failed claims De Minimis: 10 failed claims Fair Use: 44 claims are fair use; 5 considered not fair use Fair use: 1)Purpose & Character – Non-profit, educational 2)Nature of the work – Scholarly, non-fiction, fact-based 3)Amount and substantiality 4)Potential harm to the market

Cambridge Univ. Press v. Becker (Ga. State Univ.) NOT FAIR USE 1)Purpose & Character – Non-profit, educational 2)Nature of the work – Scholarly, non-fiction, fact-based 3)Amount and substantiality NOT “decidedly small” AND 4)Potential harm to the market “For loss of potential license revenue to cut against fair use, the evidence must show that licenses for excerpts of the works at issue are easily accessible, reasonably priced, and that they offer excerpts in a format which is reasonably convenient for users. ”

Electronic Reserves vs. Electronic Coursepacks

E-Reserves Principle: “It is fair use to make appropriately tailored course-related content available to enrolled students via digital networks.”

E-Reserves Limitations: Closer scrutiny should be applied to uses of content created and marketed primarily for use in courses such as the one at issue (e.g., a textbook, workbook, or anthology designed for the course). The availability of materials should be coextensive with the duration of the course or other time-limited use (e.g., a research project) for which they have been made available at an instructor’s direction. Only eligible students and other qualified persons (e.g., professors’ graduate assistants) should have access to materials. Materials should be made available only when there is a clear articulable nexus between the instructor’s pedagogical purpose and the kind and amount of content involved.

E-Reserves Limitations: Libraries should provide instructors with useful information about the nature and the scope of fair use, in order to help them make informed requests. When appropriate, the number of students with simultaneous access to online materials may be limited. Students should also be given information about their rights and responsibilities regarding their own use of course materials. Full attribution, in a form satisfactory to scholars in the field, should be provided for each work included or excerpted.

E-Reserves Enhancements: Prompt instructors, who are most likely to understand the educational purpose and transformative nature of the use, to indicate briefly in writing why particular material is requested, and why the amount requested is appropriate to that pedagogical purpose. To assure the continuing relevance of those materials to course content, libraries should require instructors of recurrently offered courses to review posted materials and make updates as appropriate.

Fair use checklist: Kenny Crews, Columbia Univ. Dwayne Buttler, Univ. of Louisville