Copyright Law and Electronic Reserves Georgia Harper Office of General Counsel University of Texas System

Electronic Reserves

• Supplementary materials

• Accessible from a variety of locations

• For a particular class and term

• Does fair use apply?

Overview

• Copyright basics

• Guidelines, rules of thumb and the fair use test

• Getting permission

Copyright Basics

• The law gives certain rights to copyright owners

• Fair use is the “play in the joints”

• Sometimes you have to ask for permission

The Fair Use Test

1. Character of the use

2. Nature of the material to be copied

3. Amount and substantiality of the part to be copied

4. Effect of the copying on the market for permissions

Fair Use in the Abstact

• Copyright owners are really afraid of what users can do with electronic copies

• Users are really excited about what they can do with electronic copies

• Most CONFU participants could not agree on the scope of fair use for electronic reserves

• The Good Faith Fair Use Defense

  • 17 USC 504(c)(2)
  • Allows a court to refuse to award any damages even if the copying at issue was not a fair use
  • Applies if university personnel who copied material reasonably believed that the copying was a fair use
  • If it applies, it makes both the individual and the institution very poor prospects for a lawsuit
  • If your institution has a reasonable fair use policy, follow it!

Fair Use in the Trenches

• Conference on Fair Use (CONFU): What happened?

  • Draft ereserve guidelines (March 1996)
  • ALA position statement

    ". . . ALA does not recommend formal guidelines for fair use in a digital
    information environment at this time."

    "ALA will, together with other library associations, investigate the development
    of guiding principles and examples of current practices in the appropriate use of,
    and in licensing agreements for, digital information resources."

  • We really need help to comply with copyright law
    
    

• University of Texas System Rules of Thumb for Electronic Reserves

  Assuming a single article from a journal, a chapter from a book, a few charts or graphs:

  • Limit access
    
    
    • Students registered for the class; or
    • Computers located in specific places
      
      
  • Don’t reuse the same materials over and over without asking for permission

  If you must ask for permission, ask for the broadest scope you can get
  
  

• Keep context in mind

So It's Not a Fair Use:
What Now?

• Steps to get permission vary depending on the nature of the work

• Utilize existing institutional connections to collective rights organizations

  • University duplicating centers
  • Libraries
  • University blanket license arrangements, if any
    
    

• Determine and contact copyright owners directly

What Does All This Mean?

• Major transitional period

• Significant disagreement about scope of rights and privileges

• Be reasonable!

• Encourage faculty copyright management to provide for nonprofit educational use

Copyright Crash Course

http://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm

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Intellectual Property Section | Office of General Counsel