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COPYRIGHT IN THE LIBRARY

Fair Use: Reserve Room Operations, Generally

FAIR USE

Libraries, like individuals, have rights under 17 U.S.C. Section 107 ("Section 107") to make fair uses of copyrighted works.1  Most commonly they exercise these rights in the Reserve Room.

Reserve Room Operations

Generally

Teachers often make supplemental reading assignments or recommend additional readings that all their students can not complete given normal loan periods. Placing the reading materials on reserve gives each student time-limited access, but sometimes even severe restrictions on the loan period will not guarantee full access. The students need more copies. Faculty members may provide their own copies or ask the library to make or acquire additional copies.

Since the Reserve Room is an extension of the classroom, its copying must conform with fair use principles. This is not an easy task because fair use can be hard to understand and apply. 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 at least the four factors that are set out in the statute before deciding whether a paticular use is fair:

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.

Not very helpful, are they?

Still at one time universities thought they knew what fair use was. Recently, however, these commonly held beliefs have been challenged by several lawsuits over the scope of fair use.2    These lawsuits raise serious concerns. We can not infringe the rights of copyright owners, but if we don't defend a reasonable interpretation of our legal rights as users of others works, we may see them eroded.

Our discussion of Reserve Room operations will rely on a basic assumption: a faculty member could lawfully prepare coursepacks comprising photocopies of six articles from different periodicals and one chapter from a book without permission. 3   If this is true then those same materials can be placed on reserve, making a more conservative use of the fair use right. In the analyses that follow, we will explore the exercise of this right in print, audio, still image, video and electronic multimedia works.

Footnotes:

1 17 U.S.C. Section108 (f)(4) ("Section 108" generally), which protects certain library reprographic 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.). These cases concern faculty prepared "coursepacks" containing supplemental reading materials for students and research copies (Texaco).

3 Discussion in Fair Use: Reserve Room Operations, Print Copies explains the analytical basis for this assumption and why such activities on our campuses are different from the activities of commercial for-profit copy shops. The Office of General Counsel advises our on-campus copy centers that coursepacks containing single chapters from books, single articles from journals and no more than a few charts, graphs or illustrations would generally qualify as fair use for the first semester of use by the same professor for the same class. Requests beyond these "rules of thumb" require either a more involved fair use analysis or permission from the publisher. See also, discussion in "Fair Use of Copyrighted Materials."

Subjects in this series: