Re: Electronic Reserves

On 10/28/98, Glen Gummess <gmckay[_at_]nmjc.cc.nm.us> wrote:
>
> Recently I attended a conference in higher education which focused
> on distance learning. As a distance learner (and educator) I have
> been concerned with "equity" issues between traditional on-campus
> students and their peers at a geographical distance, sometimes a
> very significant distance. I am curious about the two scenarios
> described below:
>
> SCENARIO ONE:
>
> College level courses occasionally require their students to
> read certain articles placed on reserve at the academic
> library by the course instructor. The students may check the
> article out and take it to the nearest photocopier machine
> where it may be duplicated for scholarly, research purposes.
> The copier bears a standard notice warning the user of
> copyright restrictions. Nevertheless, the student makes his
> copy, turns the article back into the librarian, and is on
> his/her way.

Under U.S. law:

If the article placed on reserve is a lawfully-purchased original, merely placing it on reserve is not an infringement, under the first sale doctrine. If the article placed on reserve is a photocopy, this probably violates both the reproduction and distribution rights. It is therefore an infringement, unless it is deemed to be a fair use. [I would be comfortable arguing for fair use in this situation, but it is not a slam dunk by any means.]

As for student photocopying: the fact that the copying is being done for scholarly, research purposes does NOT necessarily make it a fair use. [See Princeton Univ. Press v. Michigan Document Services.] The student, therefore, may have infringed, even though the library is off the hook because of the posted warning. BUT if the instructor or library instructed or encouraged the student to copy the work, rather than merely overlooked it (a fine distinction, I grant you), then the university may be liable for contributory infringement as well (notwithstanding the posted warning). Fair use is unlikely, but one could argue this is like time-shifting.

> SCENARIO TWO:
>
> Same circumstances, only this time the course is delivered
> over the world wide web. The course instructor requires
> students to read certain articles. The students, though, are
> scattered regionally across the United States. Therefore,
> they don't have the same access to the academic library where
> the student would otherwise check out the article in-person.
> Some of the students live close enough to the campus to visit
> the library but others live more than 300 miles away, making
> such trips punitively impractical. The instructor's
> problem-solving approach is to have the article placed on
> reserve at the library by having it digitized and formatted
> into a "portable document file" or .pdf-- read easily by any
> computer with a freeware called Adobe Acrobat Reader.
>
> The student at the remote location, 300 miles away, telnets
> into the library, enters a password which is available ONLY to
> the students enrolled in the specific course, and gains access
> to the virtual room containing the article. The student
> downloads the article to his home computer, which is analogous
> to the library photocopier for all intents and purposes, and
> prints out a hard copy.
>
> At the end of the semester, the library's automated system
> flags the staff with an advisory which says that it's time to
> remove the article from electronic reserve. The staff, duty
> bound by policy, does so.

"Digitizing" an article is making a reproduction in a digital form. There are now TWO copies of the work: the original, and an electronic copy, which is fixed (on the hard disk of a computer). In this scenario, therefore, the university (through the professor) is making a copy, in addition to the copying done at home by the student. This is identical to scenario 1-A, in which the instructor places a photocopy on reserve rather than the original. It may or may not be a fair use.

Performance or display of a nondramatic musical or literary work over the web may be permitted under sec. 110(2), if it is part of the classroom instruction component of distance learning; but if it is merely a reproduction for purposes of the required outside reading, it would not qualify.

The student who downloads the article and prints out a hard copy has infringed, unless this is considered a fair use. [Unlikely, but the time-shifting argument is available.] Again, the university may be liable for contributory infringement, depending on whether or not it encouraged or merely condoned the conduct. It would be wise to post the standard copyright warning with the material on the web site.

Silly distinctions? Yes, but that is the result of the application of law developed with hard copies in mind to new technologies.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Thu Oct 29 1998 - 23:58:20 GMT