electronic reserve

From:	SMTP%"GHarper[_at_]utsystem.edu" 21-SEP-1993 11:02:24.21
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Date: Tue, 21 Sep 1993 10:51:14 -5-1
From: GEORGIA HARPER <GHarper[_at_]utsystem.edu> Subject: uuencode -Reply
To: CNICOPY[_at_]CHARLIE.USD.EDU
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I suspect that something is up with our email. Other people that heretofore have received files from me without having to decode are reporting the same thing.

The text of the message is as follows:

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 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 a paper 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 Received on Tue Sep 21 1993 - 19:26:54 GMT