>>> "Caroline Geer" <geerc[_at_]letu.edu> 10/03 6:15 AM >>> wrote:
>>>>
I have just gone through such a discussion with our faculty. As I understand "Fair Use" in an academic setting-and I will be eager to read any comments from the copyright attorneys on this issue-the articles that are used in the Reserve Room may only remain for the duration of the course [usually a semester or quarter]. After that time, they must be destroyed. [etc.]
<<<<<
Ms. Geer's remarks are an attempt to write "bright-line" rules for libraries to follow in putting course material on reserve. They seem to be guidelines for a risk-averse institution that wants to avoid any controversy over infringement and fair use at all costs.
The problem is that copyright law and the fair use doctrine, as currently written, do NOT provide any such bright-line rules. Fair use is a case-by-case analysis based on an assessment of all of the circumstances. A library or archive that wanted to go beyond Ms. Geer's suggested guidelines could make a reasonable argument that keeping the photocopies still falls within the fair use doctrine, at least in some cases. It all depends on whether the use in a particular case is seen (after the fact) as fair and reasonable, according to a court.
One of the factors that a court takes into consideration in fair use is the custom and practice in the industry. So, to the extent that libraries cave in to fear and publisher pressure, you are shooting yourselves in the foot and making it more difficult for everyone else. If YOU think a particular practice should be considered fair use under §107, do yourself and everyone else a favor and just keep doing it. The chances that it will come to a publisher's attention are slim; the chances that it would go beyond letter-writing to a lawsuit are even slimmer; and the chances that a lawsuit would lead to a large damage award are slimmer still.
[Note: I am not advocating anarchy or theft. I am advocating taking a principled position in those instances where one believes an act should fall within the fair use doctrine, and sticking to it. That is how law evolves.]
Granted, this is not the answer most clients want to hear. Most clients want a bright-line rule: what can I and can't I do. So, to the extent that copyright law relies on case-by-case balancing, it may not be serving the interests of the public very well. [However, Prof. Dan Burk has argued that in some instances "fuzzy" rules are efficient because they lead to more licensing rather than less.] But that's what we're stuck with right now; and writing guidelines to avoid all controversy simply restricts your freedom to act with little, if any, benefit to the copyright holder.
Tyler T. Ochoa
Associate Professor
Whittier Law School
-----Original Message-----
From: owner-cni-copyright[_at_]cni.org [mailto:owner-cni-copyright[_at_]cni.org]On
Behalf Of Atwood, Gary
Sent: Thursday, September 28, 2000 8:30 AM
To: Multiple recipients of list
Subject: Backfile of photocopied articles
Dear Members of the List:
I have a question that I'm fairly sure that I know the answer to, but I still would like to hear some of your opinions. First, a little background.. We have two file cabinets full of photocopied articles that the professors here put on reserve for their classes. The file cabinets sit out in a public area where anyone can have access to them, although they are seldom used by the general public. It's my understanding that the rationale for storing these articles was that the professors usually come in a request that the same articles be put on reserve each year when they teach the class so why not save ourselves a lot of extra work by just filing the articles and reusing them? While I agree with the idea and have gone along with the system as it stands, I don't think that this is the proper thing to do from a copyright standpoint. My question is: is it acceptable to archive these articles in the manner that we have been doing or do we have to dispose of them once class is over and the reserve shelves are taken down? While I have been here, any new articles that have been put on reserve have either come from journals that we subscribe to or professors who I assume have gotten them properly. I cannot say the same for the articles collected in the years before I arrived. I don't know if it makes any difference or not, but I thought I would mention it.
As I said in the beginning, I'm fairly sure that we are not supposed to be operating in this manner, but I'm in a position now to make a change to this policy and I'd like to put us back on the right track if at all possible. Thanks in advance for the advice.
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