Copyright in the Library Fair Use: Reserve Room Operations, Electronic Copies

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

Reserve Room Operations

Generally.

Electronic reserve.

Electronic reserve requests are becoming commonplace. The obvious convenience of electronic storage and access makes this medium very attractive. Electronic reserve operations can involve all of the rights of the copyright holder discussed in connection with print copies, sound and video recordings and duplication of images, depending upon the work to be reserved. Thus, an electronic reserve request will always involve copying, but will also involve at least one and perhaps both the performance rights (public display and/or performance).

As a practical matter, however, we really only rely on fair use to excuse our use of others materials for electronic reserves. Providing computer access to educational materials involves a performance or display of those materials, but it is not a "face-to-face" performance or display; rather, it is a "transmission." Section 110(2), which excuses educational performances and displays during transmissions, explicitly excludes reserve readings from the scope of its coverage. Therefor, with only minor modifications, we would rely on the fair use analyses described for print copies and sound and video recordings and photographic image duplication to make six articles and a chapter from a book, audio and video recordings and photographic images available to students via computer terminals in the library or remotely at other campus or off-campus locations. The modifications to the analyses involve recognition of the additional risks to copyright owners' interests that electronic copies create: the ease of further duplication and distribution. As always, the hallmarks of fair use involve adequate protection of the copyright owner's interests. In electronic reserves, this usually means password protected storage; streaming media when practical; and getting permission after first semester use for text.

Guidelines for fair use in the electronic environment.

The National Information Infrastructure Task Force Working Group on Intellectual Property Rights established a Conference on Fair Use in the fall of 1994, which met monthly for more than two years. Its purpose was to bring together the interested parties (publishers, authors, libraries, etc.) to negotiate fair use guidelines for the use of materials in a variety of contexts: electronic reserves, use of image archives, interlibrary loan, distance learning and multimedia.

The draft Electronic Reserve Guidelines did not achieve consensus support, meaning that they were not agreed upon widely; nevertheless, they provide a good framework for thinking about what is fair use in the reserve context. As is the case with all Guidelines, they are not the law, but only at best, a statement of certain parties about what they all agree would be fair use. As such they represent considerable compromise.1 The Electronic Reserve Guidelines permit us to place small parts of others' works on reserve for one semester without permission. Thereafter, if the same faculty member requests the same materials for the same class, we should get permission. They also require that only students in the class should have access to the materials. These limitations illustrate the kind of consideration given to the copyright owner's interests. The University of Texas System has used the Guidelines as a basis for developing a set of Rules of Thumb for Electronic Reserves.

The four factor fair use test also balances the interests of both the users and the owners of copyrighted works. The analyses set forth in the companion articles on print copies and sound and video recordings and photographic image duplication show how fair use achieves balanced results. For example, the easy availability of a license to use a work, or the lack thereof, influences the fourth factor, as illustrated in the above-referenced articles. The scope of fair use is broader for media such as movies, music and images; narrower for text. This scope is implemented in time (the amount of time one may use materials without permission) and in the amount of the materials that can be used. So, continued educational uses of materials for which permission is difficult or impossible to obtain are likely fair uses; continued educational uses of materials for which permission can easily be obtained are less likely fair uses.

Footnotes:

1 For more information about the Guidelines, see CONFU.

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Crash Course in Copyright | Intellectual Property Section | Office of General Counsel