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Re: E-reserves in California (CHE)

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
> 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