Re: Backfile of photocopied articles

Paul Rittelmeyer wrote:

> Three cheers to Prof. Ochoa's remarks. The most discouraging messages I read on this list are from
> librarians who constantly say that Fair Use is too risky so they never consider it. Librarians will
> either use Fair Use or most certainly lose it. It seems very rare to me to have anyone actually
> advocate for Fair Use on this list, which I consider to be extremely publisher friendly. Thanks Dr.
> Ochoa. I'll try and add some support to your position in the future.
>
> Paul Rittelmeyer
> Digital Acquisitions Coordinator
> Alderman Library
> University of Virginia
> Charlottesville, VA 22904-4105
> 804-924-4988
> FAX 804-924-3143
>
> > -----Original Message-----
> > From: owner-cni-copyright[_at_]cni.org [mailto:owner-cni-copyright[_at_]cni.org]On
> > Behalf Of Tyler Ochoa
> > Sent: Friday, October 06, 2000 7:16 PM
> > To: Multiple recipients of list
> > Subject: Re: Backfile of photocopied articles
> >
> >
> > >>> "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.
> >
> > ****************
> > Gary S. Atwood
> > Assistant Librarian
> > Bangor Theological Seminary
> > 300 Union Street
> > Bangor, Maine 04401
> > e-mail: gatwood[_at_]bts.edu
> > tel: (207) 942-6781 x123
> > ****************
> >

While I applaud the notion of behaving according to one's "principle position", it's not terribly practical to suggest that on a wide-scale basis such as Prof. Ocher seems to be suggesting.

As it is with sexual harassment policies and other "organizational behavior"-type issues, businesses and institutions need to have some form of guidelines and structure as a general rule. Someone is responsible to develop those guidelines and be responsible for the well-being of the institution--the buck stops somewhere. I don't think it's terribly realistic to say to the "buck-stops-here" individual "take a principle position". That approach is much better suited on an individual basis.

I don't see the harm in taking an extra prevention step to err on the side of caution when I might be the one who has to answer for it.

I don't agree that the "fair use" factor of copyright law is a "use it or lose it" proposition. Prof. Ocher says that those who "cave in to fear and publisher pressure" are shooting themselves in the foot. I wonder precisely how that differs from caving into the unbased fear that fair use exceptions will be snatched away if people don't use them to a certain degree.

Regards,
Marty Received on Mon Oct 16 2000 - 20:50:41 GMT