Re: Harvard Business School Publishing

I think you probably are wrong. Fair use is always subjective, but if you are copying and distributing entire articles from HBR I don't think the fair use factors works in your favor. Under its copyright, HBSP has the exclusive right to copy and distribute the HBR articles and case studies. If they were not offering access to individual articles through their own Course Planning system, you might have an argument that your use is only for non-profit educational purposes and somewhat transformative (the first factor), and it doesn't have an effect on the potential market for or value of the copyrighted work (the fourth factor); but you would still have to get past the fact that the articles are on the high end of the original/creative vs non-creative/factual continuum for purposes of determining the nature of the work (second factor), and you are copying the entirety of articles which are each copyrightable (third factor). But as it stands, you are simply giving away what HBSP is selling under a license. If the nonprofit educational purpose of the unauthorized use generally trumped the copyright owners right to exploit the educational market, there wouldn't be a market for educational works.

I'm not sure what distinction you are trying to draw between "copyright" and "licenses." Licensing digital access is just another way, like selling year-long subscriptions to compilations in hard copy, to exploit the value of the copyrighted work.

If you are generally scanning articles from journals and periodicals and distributing them on the university's IT system, you need to consult with the university's counsel and make sure that you're not in flagrant and frequent violation of the Copyright Act. As I read it, the notice from HBSP is not overreaching, and if someone else comes after you on the same claim, the fact that they didn't send out a notice won't be a defense.

John Noble

At 6:38 PM -0400 9/28/05, Carol Resco wrote:
>The following message was sent to one of the management faculty at
>our institution. We subscribe to Harvard Business Review in print
>and also have access to the online through Ebscohost. We have used
>articles from HBR in our Eres system. The following message seems
>to indicate that no online posting of articles from HBR would be
>allowed without going through their course system (which of course
>means paying for every use!) They discuss "copyright" but aren't
>they really talking about "licenses" for electronic material. I am
>thinking that I still should be able to photocopy from our print
>collection, scan that, and mount on the electronic reserves server.
>Am I totally wrong?--Carol Resco
>
>
>
>
>To our colleagues in the academic community:
>
>Harvard Business School Publishing has received an increasing number of
>inquiries about posting our content on library "e-reserves" and course
>platforms. This short note is intended to clarify our policy toward digital
>content delivery, and provide you with a set of guidelines to follow.
>
>Harvard Business School Publishing distributes Harvard Business School Cases,
>articles from the Harvard Business Review and our family of newsletters, and
>books from the Harvard Business School Press for use in MBA and undergraduate
>courses in universities worldwide. It is our aim to provide our content to
>students and instructors in the format they find most useful and convenient,
>whether that is hard copy from our presses, locally reproduced copies, or
>digitized files for downloading.
>
>We do not permit the posting of our cases, articles, or chapters on
>"e-reserve"
>course pages for student access, nor in "electronic coursepacks" that link to
>our digitized content, nor on course management systems such as WebCT or
>Blackboard, unless doing so via our Course Planning system. Such unauthorized
>postings are equivalent to distributing our copyrighted content to
>students, and
>doing so without our permission infringes that copyright. This is so
>even if the
>content is being used for the first time and is password-protected, accessible
>only to students in the course, and taken down at the end of the
>course. Please
>do not post or display HBSP content in this way. Using our Course
>Planning tool
>is every bit as easy and functional.
>
>Clearances for your coursepacks can be obtained from your institution's
>copyright permissions coordinator.
>
>See more information on our Course Planning tool on our web site:
>
>
>Carol S. Resco
>Library Director, OGI School of Science & Engineering Library
>Oregon Health & Science University, West Campus
>20000 NW Walker Road
>Beaverton, OR 97006-8921
>(503) 748-1060
>(503) 748-1029 FAX
>rescoc[_at_]ohsu.edu
>
>http://www.ogi.edu/library
>
>
>
>
>
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Received on Fri Sep 30 2005 - 01:30:01 GMT