Re: electronic storage -Reply

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I have been somewhat surprised by the generally discouraging response 
to Mr. Naylor's inquiry.  Most respondents seemed to assume the 
electronic copies were a course packet (ie., Kinko's) problem and that to 
be on the safe side, permissions should be obtained.  Regardless of how 
easy it might be to obtain them (in someone's dreams), permissions are 
not needed if the copying is within the bounds of fair use.

Analogizing to Kinko's is a bit misleading.  The scenario described by 
Mr. Naylor struck me as a reserve room operation as distinct from a copy 
center operation.  Such copying is still analyzed under Section 107, since 
reserve room operations are considered by most observers to be an adjunct 
to classroom activities, however, in the University environment, two 
major negative factors present in the Kinko's analysis are absent, 
namely the profit motive and the quantity of copying (one copy per 
student).  

The courts have stated over and over that the findings as to one factor 
influence the weight given to other factors.  For example, a commercial 
motive under the first factor will affect the weight given the third and 
fourth factors, as one could easily see in both Kinko's and Texaco.  
Similarly, a nonprofit educational purpose under the first factor will 
positively affect the outcome of the analysis of the third and fourth 
factors.

If you look at this scenario as a reserve room operation, it appears quite 
normal and well within the typical reading request a faculty member 
might make.  Students are required to read the 6 articles and one 
chapter; they must do so in the library; they cannot take the materials 
home with them.  In fact, if the original articles and chapter were 
made available to the students in the reserve room, they would have 
the option of making a copy of the materials in the library and taking 
them home.  This electronic reserve is less amenable to further copying 
than the original materials on reserve would have been.

Under a straight 107 analysis, the question would be whether the 
faculty member or library as his or her agent could make a copy of each 
of the articles and the chapter and place them on reserve for the 
students to read.  Since Section 107 explicitly refers to multiple copies 
for classroom use as an example of fair use, and since up to 120 such 
copies could legitimately be made if the copying meets the 
requirements of the four fair use factors, making only one copy for all 
the students to share seems a much more conservative use of fair use 
than would making 120 copies.

Perhaps where I part company with many observers is that I would 
analyze the use under 107, weighing all four factors, and I would 
conclude that this professor's copying is fair.  As one respondent 
suggested, I don't think making an electronic copy should be analyzed 
any differently from making an electronic copy.  Section 107 does not 
apply only to photocopies or only to copying.

There is a good article on the subject entitled "Electronic Reserve and 
Copyright" authored by Mary Brandt Jensen (Computers in Libraries 
March 1993) that discusses the display and public performance rights 
that are implicated in accessing copies electronically in the library.  
Ms. Jensen's conclusion is that the display and/or performance of the 
work is just as likely as the copying of the work to be a fair use.
The same weighing of the fair use factors that must be done to establish 
the right of the library to make a copy under Section 107 would 
probably result in the same conclusion with regard to the right of the 
patron to do what is needed to perceive the copy (ie display it on the 
computer screen).  She also discusses extra protection that might be 
afforded by other sections of copyright law (109 and 110).  I commend 
the article to you.

Georgia K. Harper
Office of General Counsel
University of Texas System
201 W. 7th Street
Austin, Texas 78701
512 499 4462 (voice)
512 499 4523 (fax)
gharper[_at_]utsystem.edu