Re: E-reserves in California (CHE)

[Joseph Esposito <espositoj@gmail.com>]

Was the California situation designed to be the test case for fair use?  
The courts will decide what constitutes fair use, but the legal channel is
inevitable.  I would have thought that the test case--the inevitable test
case--would have had a different profile.

Joe Esposito

On Apr 8, 2005 7:01 PM, Sloan, Bernie <bernies@uillinois.edu> wrote:
> Funny, but timely...
> 
> In my home snail-mail today I got an announcement from the Copyright
> Clearance Center about their new free guide titled: "Using Electronic
> Reserves: Guidelines and Best Practices for Copyright Compliance":
> 
> http://www.copyright.com/media/pdfs/Using-Electronic-Reserves.pdf
> 
> Bernie Sloan
> 
> -----Original Message-----
> Sent: Thursday, April 07, 2005 7:02 AM
> To: liblicense-l@lists.yale.edu
> Subject: E-reserves in California (CHE)
> 
> >From today's Online Chronicle, of interest.
> 
> ---------- Forwarded message ----------
> 
> Legal Battle Brews Over Texts on Electronic Reserve at U. of California
> Libraries
> By SCOTT CARLSON
> 
> Publishers are objecting to an electronic reserve system at the University
> of California in which libraries scan portions of books and journals and
> make them available free online to students.
> 
> In recent months, lawyers for the Association of American Publishers have
> sent letters to the university that object to the use of electronic
> reserves on the San Diego campus. The publishers say that the use of
> electronic reserves is too extensive, violating the "fair use" doctrine of
> copyright law and depriving them of sales.
> 
> University officials counter that the electronic reserves at San Diego are
> well within the bounds of fair use. They worry that the letters portend a
> lawsuit.
> 
> "They clearly had a lawsuit in mind when they started contacting our
> office," said Mary MacDonald, a lawyer for the university system. "Their
> position was that the 'evidence' showed that we weren't following fair-use
> guidelines, that this was a national issue, and that the set of facts gave
> them a good platform from which to take legal action."
> 
> Ms. MacDonald said she sent a "comprehensive response" to the association
> in February, laying out how the university's electronic reserves respected
> fair use. She said she had not heard from the publishers since then.
> 
> Allan R. Adler, vice president for legal and governmental affairs at the
> publishing group, said the university's responses "haven't been very
> satisfactory."
> 
> [SNIP]
> 
> For the publishers, there is a great distinction between materials that
> constitute "reserves" and those that compose a "course pack." In the
> 1990s, publishers won a series of lawsuits against commercial companies,
> 
> such as Kinkos, that were copying and selling materials for course packs.
> Courts determined that the publishers, as the copyright holders, should be
> paid for the materials.
> 
> Mr. Adler said he objects even to the notion of electronic reserves. This
> is not like the old days, he said, when one copy of a reading was at the
> library, and students had to hike there to read it.
> 
> "We are talking about putting materials in digital form onto a library
> server, and then allowing students to have access to it as they choose,
> including in many instances the ability to download and print copies," he
> said. "That's not the same thing as traditional reserves."
> 
> [SNIP]
> 
> Jonathan Franklin, associate law librarian at the University of Washington
> and a fair-use scholar, said that because the doctrine had not been well
> defined, some institutions have let fear of litigation determine how, or
> whether, they set up electronic reserves.
> 
> "It's very vague as to what people can do, and institutions are so
> risk-averse that they license things they wouldn't normally have to
> license," he said. Still, he said, a legal battle might help clarify
> matters. "I would look forward to a resolution that was public," he said,
> "and that set out guidelines and standards under which universities could
> successfully offer electronic course reserves."
> 
> copyright 2005 Chronicle of Higher Education