E-Reserves and "Fair Use:" to the senior colleague I was talking with today….

I had an annoying conversation with someone at EMU today (who will remain unnamed because I am polite and also because I don’t remember his name) about the concept of “fair use” as it pertains to copyright. I’ll spare the details here, but this colleague was convinced that I was most certainly breaking the law with my use of EMU’s e-reserves system and the reason why I wasn’t being sued over this was because I was “small potatoes,” or some such thing. He said this to me several times.

I don’t think that this colleague had any unique wisdom regarding copyright and fair use; his main qualifications for making such a pronouncement seemed to be that he was much older and taller than me.

In any event, I came home and did a little bit of basic web research and I learned two basic things. First, it seems that the rules for fair use as they apply to e-reserves kind of depends on who you want to believe. For example, this press release from the Association of American Publishers suggests that materials in e-reserves have to be cleared in the same fashion as materials that appear in printed course packets. I was under the impression that one of the main reasons why the coursepack people had to go through this was because they made money from them. Regardless, this kind of “hardline stance” isn’t surprising, given the nature of the organization.

On the other hand, The American Library Association Statement on Fair Use and Electronic Reserves is pretty open-minded and flexible about fair use as it applies to e-reserves. Again, probably not surprising. I think one of the most interesting passages is the “Summary” that appears in the last paragraph:

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. At one end of the continuum are combinations of practices with which individuals and institutions tolerant of some risk will be comfortable. On the other end are combinations of practices with which those who are averse to risk will be more comfortable. Each institution’s combination of practices reflects its tolerance for risk against the background of prevailing beliefs about fair use. Understandably, “not knowing” makes many people uncomfortable, so Congress explicitly addressed this aspect of fair use. 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!

I’m reading this as meaning that as long as I’m not trying to violate copyright laws and my intentions are educational, I’ll be fine, as will everyone else at EMU who are acting in good faith. In other words, my taller/senior colleague ought to not worry.

However (and this is my second learned idea of the day), I do think that my review of the “rules” of fair use make me realize that I need to maintain and/or “close off” my e-reserve sites at the end of semesters and not just leave that stuff up there all the time. I’m not entirely sure why this is the case, but part of fair use seems to require me to occasionally take things off of the site. It doesn’t say exactly how long I have to do that, but since I won’t be needing these things this summer, I’d say that will probably be long enough.

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