The Challenge of E-Reserves

Library users today expect instant and seamless access to all types of full-text material, both onsite and remotely. But perhaps no material is more desired in an electronic format than the chapters and articles sitting in an academic library's reserve room. Librarians are as eager to deliver this content electronically as students are to receive it. After all, for generations traditional print reserve collections have created problems for librarians and users alike. So why can't libraries just do it? While the technology is now available, the obstacle is copyright law. The interpretation of copyright law for reserve materials, difficult and confusing in the print world, is even more so in a digital world. Nontraditional uses of copyrighted works for e-reserves raise new challenges.

How can libraries resolve the situation, providing their patrons with the services they want while complying with copyright law? First, there has to be a basic understanding of copyright law and its application. While the copyright law certainly has limitations, it also has tremendous opportunity and flexibility, particularly with the fair use exemption.

The copyright law, Title 17 of the U.S. Code, is a federal law that protects copyrighted works for a certain period of time. The law is complex, but it strives to balance the rights of copyright holders with the rights of the public. Copyright law recognizes that the creators of works should have the right to determine if and how their works are used. However, the law also takes into consideration that there are times when the public should have access to the works without obtaining permission from the copyright holder or paying royalties. There are library and educational exemptions to the law for uses of copyrighted materials. However, the exemption that is most applicable to e-reserves is the legal doctrine of fair use, contained in section 107 of Title 17.

In order for a work to be copyrighted, it must be original and fixed in a tangible medium of expression. Facts, words, and short phrases cannot be copyrighted because they don't meet the originality requirement. A work is automatically copyrighted once it meets the originality and fixed requirements. It does not have to be formally registered with the U.S. Copyright Office, and it does not have to have a copyright notice (i.e., author, year of publication, and copyright).

There are three possible ways to put materials on e-reserves: use only public domain materials, invoke the fair use exemption, or have permission to use the works.

Works in the public domain are free to use. There are two general categories of public domain works: works whose copyright has expired and works by U.S. government employees.

Works currently enjoy copyright protection for the life of the author plus 70 years. However, the duration of copyright protection has changed many times over the years, and it is difficult to ascertain if a work is still protected. It is safe to say that a work that was published prior to 1923 is in the public domain.

Works that are produced by government employees while working in their official capacity are generally not protected by copyright and are in the public domain. However, there are exceptions to every rule. There could be a situation whereby the government has entered into a contract with a university or group to produce a work and the other party might own the copyright. Most publications will usually indicate on the title or verso page if this is the case. When in doubt, contact the issuing agency.

There is no magical database that lists all of the works in the public domain. One must look at each work and make a determination, based on the above categories, as to whether the work is protected.

The fair use exemption is a legal doctrine that is comprised of a four-factor test that must be applied to the use of the work. Each factor is weighed equally. Fair use is about balancing the rights of the copyright holder with the public's right to use the material. If a use can be classified as fair use, then permission is not needed to use the work.

• The first factor looks at the purpose and character of the use. Educational use weighs in favor of fair use and commercial use weighs against fair use.
• The second factor looks at the nature of the work being used. Factual works are given less protection than creative works.
• The amount of the work used is the third factor. Generally, a large amount weighs against fair use, whereas a small amount would be considered fair use. There is no magic number or percentage.
• The fourth factor looks at the market effect. If the intended use would negatively impact sales of the work, then the use would generally weigh against fair use.

A history professor wants to place on reserve a digital version of three chapters of a 20-chapter book. Is this fair use? In the first factor, educational use weighs in favor of fair use, as does the second factor, since the book consists primarily of facts. The third factor, the amount, would more than likely weigh in favor of fair use. As for market effect, it is likely that the professor's use would not impact the market; few students would purchase a book to read three chapters. Four factors for fair use, zero against.

Let's change the scenario slightly. A professor wants to place in the e-reserve collection ten chapters of a book, published in 1980 and now out of print. Is this fair use? The first and second factors remain the same, which favor fair use. However, the third factor has changed. More than likely the amount is too great so the use would not be fair. The fourth factor could go either way because even though the book is out of print, someone still owns the copyright to the work. Let's say that the book is out of print and the copyright owner could not be located after a diligent search. There could be a market effect, but it would probably be minimal. Here, three factors weigh in favor of fair use and one against.

Let's change the scenario one more time. A book has recently been published and is a best seller. A professor wants to place on e-reserve ten chapters of a 20 chapter book. Is this fair use? First and second factors still weigh in favor of fair use but the third and fourth factors now weigh against, making it a tie. What do you do? In this case, the students should probably either purchase the book or the professor should request permission.

Whatever the decision, it is in the best interest of the decision-maker to understand fully the concept of fair use and the four factors. Should there be a lawsuit for copyright infringement, the court can reduce the money damages if it is shown that the fair use doctrine was understood and a good faith determination was made. It is important to remember that all educational use is not fair use. All four factors need to be applied and balanced.

When fair use or other exemptions do not apply to a copyrighted work, the only option is to request permission from the copyright holder to use the work. One can contact the copyright holder directly or employ a service such as the Copyright Clearance Center. If permission is denied, then the work cannot be used.

Permission to use materials varies from one publisher to another. Some are more amenable to the use, particularly if the library owns a copy of the work, while others will charge royalties for each use. There can certainly be an occasion where a publisher denies permission, but generally an exorbitant royalty fee is just as effective in discouraging use. As much lead time as possible is recommended when trying to obtain permission. Many publishers will respond in as little as a week whereas others might take months to process the request.

Traditional reserves incorporate all types of materials. However, e-reserves must differentiate between materials because of the copyright law. Generally, it is the fair use exemption that is relied upon for e-reserves.

Photocopies of journal articles are usually placed in a file folder for print reserves. In e-reserves most articles are scanned and posted. Increasingly, full-text journal articles are available electronically via licensing mechanisms. It is the wise librarian who negotiates such licenses to include e-reserves.

Audiovisual works are different. Only very minimal amounts should be placed on e-reserves, and the use must comply with fair use. The distance education exemption strictly prohibits the transmission of audiovisual works, so fair use is the only applicable exemption.

Images may be scanned and posted as part of e-reserves, but again the fair use test must be applied. It is also important to note that in many cases an image is a complete work so the third factor of the test—amount—would weigh against the use. In February 2002 the Ninth Circuit Court of Appeals ruled in Kelly v. Arriba Soft Corp. that the use of a thumbnail or miniature of an image was fair use but displaying and reproducing the full image was not fair use. The court reasoned that the thumbnail images were of such low resolution that one would have to access the full image in order to use it adequately. The court ruled that Arriba's use of Kelly's images was transformative and would qualify for fair use.

No consumables such as workbooks or standardized tests should be used for e-reserves unless permission from the copyright holder has been obtained. Consumables are meant to be purchased and used individually. They generally do not qualify for fair use.

A potential landmine for e-reserves is student papers or projects. There are two legal issues that need to be addressed if a professor requests that such materials be placed on e-reserves. First, unless an institutional policy states otherwise, copyright ownership of the student paper rests with the student. Therefore, permission to use the material must be obtained. Second, even though this is beyond the scope of this article, it is important to note that there is another federal law known as FERPA (Family Education Rights and Privacy Act) that in essence designates student papers and projects as part of the student's educational record. Educational records are subject to the protection of FERPA, and so students must grant permission.

All materials placed on e-reserves must be directly related to the course curriculum and should be requested by the professor. All materials used should be legally acquired copies. For example, a copy of an article from a journal that the library subscribes to is acceptable, whereby a copy of a book chapter from unknown sources is not acceptable.

One of the major legal issues associated with e-reserves is the actual scanning or digitizing of materials. Copyright holders have the exclusive right to reproduce, distribute, and display their work. Digitizing and posting infringes on those exclusive rights. When a work is digitized, it is then reproduced. When it is posted, it is distributed. If the material is accessed in front of a group, which is certainly possible if someone accesses it in a library, then an argument can be made that the work has been displayed. Again, it is the fair use doctrine that comes to the rescue.

Linking to the materials is preferable to digitizing and scanning. At present, linking is still legal. The optimal situation is to link to materials either owned or licensed by the library. Licenses for databases and other materials that specifically allow use for e-reserves are the best route. Most contracts from vendors/publishers do not include this provision, but it is certainly a viable and negotiable issue.

WebCT, Blackboard, or other course management software is an option that some universities use. The professor and librarian can collaborate in taking the responsibility of posting the materials. The liability shifts to the professor if the professor goes it alone. However, the institution very rarely escapes liability.

Access to e-reserves should always be protected through passwords or other means. It is also wise to limit access to only those students enrolled in the class. Campuswide access has the potential to impact the market for the materials, possibly changing the outcome of the fourth fair use factor of market effect. The material should be available for the duration of the course, be it a semester, quarter, etc. After the designated period has expired, the material should be removed or access denied.

The library must carefully and consciously make decisions on its copyright policies for e-reserves. Some libraries have determined that all use is fair use. Some maintain that all first-time use for a specific course is fair use but each subsequent use requires permission. Others obtain permission for each use of a work. Whatever policy is adopted, it is important to be consistent in its implementation. It is always a good idea to review the policy with the institution's legal counsel.

Many institutions have intellectual property policies or specific copyright policies. Before embarking on an e-reserves initiative, it is wise to understand such policies and their application to the project. Institutional liability is also a concern. Some institutions are more willing to risk a lawsuit than others, so it is critical to understand the risk level of the institution. Guidelines can offer a starting point for discussion (see "Guidelines, Cases, and Legislation" p. 33).

Under no circumstances should the material on reserve substitute for the purchase of a work. In the best of all worlds it is advisable that the library either own or license a copy of the work. The e-reserves material should support the basic texts for the course. All the materials should be directly related to the course. There should also be no charge for access to the materials. If it becomes a commercial venture, then potentially the fair use argument is no longer valid.

A major issue that libraries face is what to do with repeated use. If a work is used each semester, then fair use gets weaker with each subsequent use. If different professors request the work, then the fair use argument might fly. But if the same professor uses the same work semester after semester, then the argument can be made that the use exceeds fair use and denies the copyright holder revenue. If the library owns a copy of the work, then the fair use argument is certainly a stronger one. However, the amount and market effect can still impact the fair use determinations.

A companion issue to repeated use is archiving e-reserves material. One could claim that by retaining the electronic copies, a new work was created. Since creating a derivative work is one of the exclusive rights of a copyright holder, then it can be a potential infringement. However, the argument can also be made that if access to the material is removed after the semester is over, then there should be no infringement. The library and the institution must make a conscious decision as to how much risk they are willing to assume.

It is recommended that a copyright notice stating that the material is protected by the U.S. copyright law be posted on a screen prior to accessing the e-reserves material. The notice should also state that the material should not be further distributed.

Every e-reserve program should take full advantage of the copyright law, particularly the fair use exemption. Also, inclusion of language permitting e-reserves in vendor licenses should be the goal for all libraries. Are there easy answers to e-reserves copyright issues? My stock response is, "It depends." It is important that copyright law be viewed as an asset and a viable tool, not a hindrance in promoting scholarly communication through e-reserves.