Re: Institutional subscription question

[Sandy Thatcher <sgt3@psu.edu>]

There was never, under traditional library reserve room 
practices, any implied license that the library could routinely 
supply multiple copies to fulfill all the needs of "classroom 
use." Under the ALA's own guidelines, it was suggested that "a 
reasonable number of copies will in most instances be less than 
six," which would hardly be adequate to supply a copy to every 
member of most classes. Here is the relevant section of the ALA 
Model Policy (adopted in 1982):

C. Library Reserve Uses

At the request of a faculty member, a library may photocopy and 
place on reserve excerpts from copyrighted works in its 
collection in accordance with guidelines similar to those 
governing formal classroom distribution for face-to-face teaching 
discussed above. This University [College] believes that these 
guidelines apply to the library reserve shelf to the extent it 
functions as an extension of classroom readings or reflects an 
individual student's right to photocopy for his personal 
scholastic use under the doctrine of fair use. In general, 
librarians may photocopy materials for reserve room use for the 
convenience of students both in preparing class assignments and 
in pursuing informal educational activities which higher 
education requires, such as advanced independent study and 
research.

If the request calls for only one copy to be placed on reserve, 
the library may photocopy an entire article, or an entire chapter 
from a book, or an entire poem. Requests for multiple copies on 
reserve should meet the following guidelines:

        1. the amount of material should be reasonable in relation 
to the total amount of material assigned for one term of a course 
taking into account the nature of the course, its subject matter 
and level, 17 U.S.C. SS107(1) and (3);

        2. the number of copies should be reasonable in light of 
the number of students enrolled, the difficulty and timing of 
assignments, and the number of other courses which may assign the 
same material, 17 U.S.C. SS107(1) and (3);

        3. the material should contain a notice of copyright, see 
17 U.S.C. SS401;

        4. the effect of photocopying the material should not be 
detrimental to the market for the work. (In general, the library 
should own at least one copy of the work.) 17 U.S.C. SS107(4).

For example, a professor may place on reserve as a supplement to 
the course textbook a reasonable number of copies of article from 
academic journals or chapters from trade books. A reasonable 
number of copies will in most instances be less than six, but 
factors such as the length or difficulty of the assignment, the 
number of enrolled students and the length of time allowed for 
completion of the assignment may permit more in unusual 
circumstances.

In addition, a faculty member may also request that multiple 
copies of photocopied, copyrighted material be placed on the 
reserve shelf if there is insufficient time to obtain permission 
from the copyright owner. For example, a professor may place on 
reserve several photocopies of an entire article from a recent 
issue of Time magazine or the New York Times in lieu of 
distributing a copy to each member of the class. If you are in 
doubt as to whether a particular instance of photocopying is fair 
use in the reserve reading room, you should waive any fee for 
such a use.

Sandy Thatcher
Penn State University Press

>Kevin Smith appears to be nervous about the suggestion that 
>there can be implied licenses in a sales contracts that can 
>trump the first sale doctrine of copyright law; I have a 
>question about a different implied license.
>
>I have often heard Lolly Gasaway state that libraries agreed to 
>differential pricing of journal subscriptions in recognition of 
>the fact that journals in libraries are used more intensively 
>than individual subscriptions.  Multiple people could read an 
>issue, and it is likely that multiple copies of individual 
>articles will be made, both by individuals and for classroom 
>use. In this environment, differential pricing became a de facto 
>site license. Libraries paid more for subscriptions because 
>there would be multiple uses of the material.
>
>We are in a situation now where publishers seem to want to 
>charge differential rates for institutional subscriptions and 
>also charge for individual uses of articles (such as for 
>classroom use) that had previously been covered by the 
>institutional rate. We have suggested that a library that 
>attempted to subscribe to journals at the individual rate would 
>be engaged in fraudulent practice. Are publishers who insist on 
>payments for individual uses when an institutional rate has been 
>paid also in fraudulent disregard of the implied license?
>
>Peter B. Hirtle
>CUL Intellectual Property Officer
>Technology Strategist
>Cornell University Library
>Ithaca, NY
>peter.hirtle@cornell.edu