Copyright Guide

What are e-reserves? How do e-reserves differ from printed coursepacks for copyright purposes?

The term “e-reserves”—short for “electronic reserves”—is commonly used to describe course readings that are digitized and made available on an academic department or library network site to students enrolled in the class. Students usually each need a password to access the readings and then may download and print their own copies. Unlike traditional paper reserves, posting readings in e-reserves always requires making copies of the original materials, and e-reserve systems typically make the readings available simultaneously to all students in the class, anywhere or anytime they choose. Permissions must be cleared for such use of materials in an e-reserve system just as they must be cleared for use in coursepacks.

How do principles of “fair use” in copyright law apply to materials included in e-reserve systems?

The statute avoids specific answers and directs us to consider the four factors equally when determining if a particular use is "fair use," and it is always best to remind ourselves that "fair use" is an “affirmative defense” to an action for infringement of the exclusive rights of copyright. An affirmative defense means that infringement occurred, but it was legally excused. As a general rule, if use of the content would not be considered “fair use” in hard copy, it is not likely to be considered “fair use” in digitized form, whether as part of an e-reserve system or otherwise.

The applicability of “fair use” principles to materials in e-reserve systems will, as in all “fair use” cases, depend on the particular facts and circumstances involved. For example:

1. If the use does not qualify as fair use when all of the four factors are analyzed (giving due weight especially to the impact of the use on the potential market for the original work), then it is a violation of copyright whether or not the provider of the material is a nonprofit educational institution.
2. If the amount of material from one work included in an e-reserve system is more than minimal, and the work itself can be readily purchased or licensed for use in an e-reserve system, the inclusion of that material in the e-reserve system is not likely to constitute “fair use” because its inclusion—when considered under the statutory factors—would have a direct, negative effect on the “potential market” for the sale or licensing of the work.
3. If e-reserve postings are used to substitute for the purchase of books, or for the purchase or licensing of other copyrighted materials that would be used in course work, their use is not likely to constitute “fair use.”
4. There is no “first-time” exception in fair use; if use of the content does not qualify as fair use, it should not be used as such, even once.

National Association of College Stores. Q&A Concerning Copying Print and Digital Works. (http://www.nacs.org/toolsresources/cmip/copyright/questions/copying.aspx)

The Darling Library will accept faculty course reserves that comply with the copyright laws of the United States (Title 17, U.S. Code). The law is complex, but for educators, the “fair use” doctrine (Sec. 107) is the most important part of the law as it gives guidance to users of copyrighted materials on when it is permissible to legally use copyrighted work without obtaining specific permission from the copyright holder.

The fair use doctrine of the law allows for limited reproduction of copyrighted works for educational and research purposes. The following factors are used to determine if the use is permissible:

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and
• the effect of the use upon the potential market for or value of the copyrighted work.

(See Copyright Law of the United States of America for the text of the entire law).

According to Kenneth Crews in copyright Essentials for Librarians and Educators “you… need not satisfy all four factors; courts balance them to identify their overall leaning-in favor of or against fair use.”¹ Each time you plan to put an item or items on reserve, the above four factors (purpose, nature, amount and effect) must be examined to determine if you are in compliance with the law. For example, if you put five copies of the same article on reserve every semester, you may satisfy the requirement of educational purpose, but the effect on the market of repeated use and the high number of copies would probably make this practice a violation of fair use.

The Fair Use Checklist developed at Indiana University Copyright Management Center will help in determining if the item(s) you plan to put on reserve meet the criteria for fair use.

Please note: it is not permissible to put on reserve books borrowed from other libraries. Also, the Library staff would prefer to purchase copies of books for course reserve and will strive to acquire its own copies, even if they are out of print, in lieu of personal copies of books. However, faculty personal copies may be put on reserve if necessary.

If you need to obtain permission to use a copyrighted work, see Getting Permission from the University of Texas for an introduction to the different ways you can go about obtaining permission.

¹ Kenneth D. Crews. Copyright Essentials for Librarians and Educators. American Library Association, 2000.

This summary, adapted from the ACRL statement on fair use and electronic reserves (Nov. 2003), may assist you in determining the fair use of electronic materials to be used in your online courses. It illustrates ways in which libraries have applied fair use criteria in the development of best practices for e-Reserves.

First factor: The character of the use is in support of nonprofit education.

Second factor: The nature of the work to be used may include text materials (both factual and creative) and may serve the interests of faculty and students who study music, film, art, and images.

Third factor: The amount used considers the relationship to the whole of the copyright owner’s work. "Because the amount that a faculty member assigns depends on many factors, such as relevance to the teaching objective and the overall amount of material assigned, [we] may also consider whether even the entire work is appropriate to support the lesson or make the point."

Fourth factor: The effect of the use on the market for or value of the work is minimized by limiting access to students within a particular class or classes and terminating student access at the end of a relevant term. We may determine that if the first three factors show that a use is clearly fair, the fourth factor does not weigh as heavily.

Summary
While there is no guarantee that a practice or combination of practices is fair use, such certainty is not required to safely implement e-reserves. The law builds in tolerance for risk-taking. 

Section 504(c)(2) of the Copyright Act provides special protection to nonprofit libraries, educational institutions and their employees. When we act in good faith, reasonably believing that our actions are fair use, in the unlikely event we are actually sued over a use, we will not have to pay statutory damages even if a court finds that we were wrong. This demonstrates Congressional acknowledgement of the importance of fair use and the importance of our using it!

Association of College and Research Libraries. Statement on fair use and electronic reserves. November 2003. (http://www.ala.org/acrl/publications/whitepapers/statementfair)

Helpful resources recommended by Kenneth Crews:

Schwartz, Meredith, "Georgia State Copyright Case: What You Need To Know—and What It Means for E-Reserves." LibraryJournal.com (May 17, 2012)