Battle Brews over E-reserves

AAP challenges practice at UCSD; is a lawsuit coming?

By Andrew Albanese -- Library Journal, 5/15/2005

In recent years, electronic course reserves have become a staple at campus libraries, large and small, public and private. But publishers, uneasy with the practice in which libraries scan portions of their collections—whether books or journals—and post them, usually on a password-protected server for a limited time, are now protesting what they claim is "tantamount to providing electronic coursepacks."

The Association of American Publishers (AAP) has been challenging the practice at the University of California–San Diego (UCSD). According to UC counsel Mary MacDonald, that effort began in fall 2003, when AAP legal counsel Allan Adler wrote UCSD officials demanding the library take "prompt action to investigate and terminate the illegal reproduction, display, and distribution of copyrighted works."

"Our concern primarily right now," Adler said, "is that we have gotten glimpses of what is going on in e-reserves around the country and it presents a disturbing picture." Although UCSD's e-reserve practices are not unlike practices at libraries nationwide, UCSD was singled out because, Adler said, AAP had received "detailed bibliographic information" of reserve readings offered there. Adler bemoaned the lack of transparency with e-reserves.

"If you wanted to see what e-reserve readings are used in a given course, you simply can't do that, because all of this activity takes place behind firewalls." Those firewalls, of course, are meant to protect copyright. "The e-reserve system isn't set up so you can just press a button and get the reserves," UC's MacDonald said.

Still, Adler denied that AAP was eager to file a lawsuit over e-reserves, although he said AAP could not rule it out. "We recognize that higher education institutions are partners with publishers," said Adler. "They are not people we look to have adversarial relationships with, and that's true of the library community as well."

Rather than litigate, AAP has asked that UC require its faculty to post publicly the bibliographic information of works they put on reserve.

MacDonald said that's simply not plausible. "First of all, the university as a whole believes fair use is applicable to e-reserves. Our e-reserves are very organized. Oversight has been built into the system," said MacDonald. "From what I know it would be unprecedented to require faculty to do something that is specifically designed to aid an association in its attempts to monitor copyright." Despite Adler's claims, MacDonald said litigation was possible, though not likely, at UCSD.

"[A lawsuit] is obviously in the background," MacDonald said, though the public threat of a lawsuit just may be the point. "There is a chilling factor, one can reach that conclusion," MacDonald conceded. "But I don't see how singling us out or suing us will solve anything."

Partly, that's because, constitutionally, AAP would not be able to collect monetary damages from UC. Copyright is a federal law, and UC is a state system, protected by sovereign immunity. "The only thing [AAP] could get from a lawsuit is a decision and whatever precedent that would set," MacDonald said. "But a court is simply not going to issue fair use guidelines."

Adler, however, said fair use restricts the issue. "The real issue for us is the scope of what is called 'e-reserves' and does it provide a risk for publishers, because it is tantamount to creating coursepacks without permission. Even worse, we are beginning to see e-reserves amount to basic course readings, substituting for material students would normally purchase."

MacDonald noted that the amount of e-reserve reading at UCSD is a miniscule proportion of requirements. "This is a national issue," MacDonald said. "The best idea is for all the parties to work together again to come up with guidelines."

That is no small feat, however. In 1997, after more than two years of discussions, the Conference on Fair Use (CONFU) failed to adopt guidelines on fair use—including a policy on e-reserves. More than 90 stakeholders took part in CONFU, including publishers, software makers, scholars, authors, the entertainment industry, libraries, museums, and university administrators.