Re: Electronic Reserves

On Tue, Nov 10, 1998, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> On 11/09/98, Laura N. Gasaway <unclng[_at_]email.unc.edu> wrote:
> >
> > In my opinion students making their own copies of
> > materials is fair use as long as they satisfy the four fair
> > use factors. There has never been a case holding otherwise.
>
> And there never will be, because by definition, a use that satisfies
> the four fair use factors is a fair use. But that simply begs the
> question, which is: DOES student photocopying satisfy the four fair
> use factors?
>
> I think that is an open question. To my knowledge, there has never
> been a case holding that student photocopying IS a fair use, either.
>
> Analyzing the four factors: It is a personal, non-commercial use,
> which favors fair use; but it is a reproductive use, which favors
> infringement. The second factor slightly favors fair use - most
> works on reserve (but not all) will be factual and informative in
> nature rather than entertainment - but the second factor rarely
> carries a lot of weight. The third factor (amount copied) favors
> infringement if it is an entire story or article, which leaves the
> fourth factor. The impact of photocopying reserve materials on the
> market for the original work is difficult to gauge; but if one
> takes the approach of Princeton v. MDS, the CCC could be used as a
> mechanism to collect permission fees for this type of use. So I
> think the matter is far from clear under U.S. law.
>
> Nonetheless, I think you are unlikely ever to see a case on this
> issue, because it is simply not economical to bring a lawsuit over
> photocopying against individual students; and libraries have been
> successful in insulating themselves from MDS-type suits through the
> legislative process [see 17 USC sec. 108(f)].
>
> Frankly, I would much prefer the Australian approach described in an
> earlier post, under which there are clear guidelines as to how much
> photocopying is permitted without permission in this context.

One point, often overlooked, it what is the cost of granting requests? If it costs $25 in time to grant requests, publishers are better off if they just let it go.

Michael A Scarpitti
Assistant Editor
Materials Evaluation
The American Society
For Nondestructive Testing
1711 Arlingate Lane
Columbus, Ohio 43228-0518
(800) 222-2768 X207
(614) 274-6003 X207
fax (614) 274-6899
e-mail mscarpit[_at_]asnt.org Received on Wed Nov 11 1998 - 14:14:28 GMT