E-Reserve Reached Under Duress?

As the Association of American Publishers (AAP) announced new “agreements” with three universities to issue guidelines on e-reserves, one administrator anonymously told the Chronicle of Higher Education that the agreement was made under a looming threat of litigation. AAP praised Syracuse, Marquette, and Hofstra universities over their adoption of new guidelines for “the use of copyrighted materials in digital formats.” The new guidelines are similar to those the AAP and Cornell University agreed to in late 2006, which Cornell said were also adopted under duress.

AAP VP and general counsel Allan Adler said the organization wasn’t threatening lawsuits. “We have to get the attention of these institutions in a serious way,” he conceded, but noted that publishers have not been “active in litigating copyright issues like the music, movie, or software industries.” The guidelines state what AAP has maintained should be obvious: practices and uses that require permission in print under the fair use provisions of the copyright act require permission in the electronic realm as well.

Although “multiple copies for classroom use” is, in fact, in the law, Georgia Harper, scholarly communications advisor for the University of Texas (UT) at Austin’s University Libraries, explained that subsequent case law has all but written that principle out, leaving administrators in a tight spot. “We don’t need a one-size-fits-all solution,” she said of the emerging guidelines. “We do need a more realistic sense of where to draw the line, because, right now, it can be justified to draw it just about anywhere.”