Re: Institutional subscription question

[Karl Bridges <kbridges@uvm.edu>]

But that doesn't reflect normal library practice.  Say you just 
have 1 copy on reserve.  You make it available for two hour loan. 
That means in a library where the building has 100 hours open to 
the public you could loan that 1 item 50 times.  What's the 
practical difference between having 1 copy available and 50?

It seems what should happen is that there is a fee structure that 
reflects the actual USE of the materials rather than the NUMBER 
of copies which, in and of itself, doesn't necessarily reflect 
usage. Of course, libraries don't have the money to pay such 
fees, but that's a different issue entirely...

Quoting 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