>From: RonNaylor <RNAYLOR[_at_]umiami.ir.miami.edu>
>Thank you Georgia Harper for a well reasoned (because I agree!) analysis.
>I await, with a degree of trepidation, Mary Brandt Jensen's 40 page
>article. I thought her March article in _Computers in Libraries_ argued
>for the legality of an electronic reserve collection.
It did with limitations and depending upon how you do it.
>We need to emphasize that the concept of the Reserve Room and reserve
>readings, accepted and defined in the 76 law and Guidelines and
If you look carefully at the guidelines, you will find that those approved by congress don't mention reserve. We libraries have developed our own guidelines on when reserve is fair, and I agree with them in the paper environment. They don't really cover electronic reserve.
>subsequent opinions and in practice, has not changed with the evolution
>of technology and new systems for document deleivery.
I disagree. Our concept of what a reserve room can do has changed substantially with technology. Before networking, we never saw it as a way to serve students hundreds of miles away.
>There is no intrinsic difference between the provision of a paper photocopy
>to a student in a reserve room in a library which, under fair use, the
>student can photocopy, and the provision to that student of an electronic
>copy from a database that is stored in a University computer and is
There can be. It matters a great deal who does the copying. In some ways of handling electronic reserve, the library winds up doing the multiple copying instead of each student exercising his/her fair use rights. Fair use rights are not transferable (at least according to Kinko's). And just because a library has a right to make one copy and put it on reserve doesn't mean it has a right to make multiple copies and distribute to students who may be far away.
>accessible from terminals in and out of the library and from which the student
>can make a paper copy. The single major distinction is that technology has
>eased the path of the student who is no longer required to come to the
>library to check out and photocopy the reserve reading. Rather, the student
>now has the option to access the University computer from dorm, lab, home and
>print out a copy. This is well within the spirit of fair use as I
>understand it.
It can be, but it isn't necessarily so depending on how you do it. The article in Computers and Libraries is much more detailed in laying out when I think electronic reserve is the equivalent of paper reserve and when I am not so sure. It also lays out when I think it is legal, and when it may be questionable.
>If we allow the legal niceties of the language of the law to determine that
>we need permissions to scan a document into a machine that 'displays' the
>document, then we are allowing technology to dictate how we behave. What
>electronic storage and display of documents means to our students is simply
>greater ease of access to information. It DOESN'T mean deprivation to
>the publisher. Even if we don't use the new technology we're not going
>to buy more copies of the original. Why should the use of new technology -
>not developed by publishers - enable the publishers to require users of
>their products to pay more for them than they are legally required to pay
>with the old technology.
>I fear that we academic librarians are so concerned not to seem to be in
>the LEGAL wrong tjhat we become afraid to assert our LOGICAL rights on
>behalf of our clientele.
We shouldn't let over technical interpretations and scare tactics stop us from doing what we determine to be legal after a fair consideration of the law, including the language of the statute and recent court decisions. But we should not fall into the trap of deciding that we can do whatever we think is logical or fair, especially without a careful consideration of what the language of the law is. Most importantly, no one should decide what the law is without actually reading it.
Perhaps I need to come up with a catchy phrase for my signature block along the following lines..
"I don't make the law; I just try to determine what it actually is. I wish the law were always logical and that I could base my actions on what I thought the law ought to be. But only a fool would do that."
Mary Brandt Jensen CNICOPY[_at_]CHARLIE.USD.EDU Professor of Law (605) 677 6363 University of South Dakota (605) 677 6357 faxSchool of Law
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