Copyright Principles in Action

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V. Library Reserves

Section 108 of the Act allows a library to make a single copy of a copyrighted article (or an excerpt from a longer work) in its possession and provide it to a library user for his or her "private study, scholarship or research". And if the library determines that a copy cannot be obtained at a fair price, the whole of a work may be so provided. However, the statute is clear that this exception applies only to "isolated and unrelated reproduction and distribution of a single copy on separate occasions" and not to "related or concerted…[copying] whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group" and not to "systematic" copying. Moreover, this right to copy for use by an individual scholar does not extend to musical, pictorial, sculptural, or audio-visual works.
Library reserves have traditionally been multiple (purchased) hard copies of the published books. Articles found in journals can be placed on reserve (i.e. the entire journal issue) if the library has a sufficient number of subscriptions to the journal. Reserves are used to afford numerous students in a class an opportunity to read assigned or recommended material without each having to purchase individual copies of the original work. In this sense, library reserves fulfill many of the same purposes as course packs. If the library does not have sufficient purchased (or donated by those who acquired them legitimately) copies, it cannot make further copies (outside of fair use) under the parameters of Section 108 since this would be related copies for separate use by members of a group.

If the instructor asks the library to scan the material (or offers the library a digitized version) and post it on a web page accessible only by students in his or her class, this would still not escape the parameters of Section 108. Whoever scans material makes a copy which action would be infringing absent justification within Section 108, permission, public domain material, or fair use. Further, if the digitized version is placed on a website from which students could download to their own computers, a further copy will be made when they download. Even if the students were only to view the material, the access to viewing is arguably a public display.

Putting permission-granted and public-domain material aside, the question becomes could it be fair use or is it justified under 108? The fair use question will be context-specific as discussed above. A current, fairly short news story would stand a pretty good chance. One hundred twenty pages from a best-selling textbook or an entire novella would be far riskier. The analysis under Section 108 is also a bit subtle. While the statute does not explicitly speak to the situation of e-reserves, it seem fairly clear that the library would know that the mounting of the material on its web site would directly facilitate (at the least) the "distribution" of the material to members of the class. If the web site were not password-protected so that others besides class members could access the material, there is even less chance the posting could qualify under 108.

There is a draft version of "Fair Use Guidelines for Electronic Reserve Systems". These are supported by numerous educational libraries, but the draft does not presently have much support from publishers. These "Guidelines" suggest that short items or excerpts from longer works such as an entire chapter from a book or excerpts from a journal article could be used fairly if the institution or the instructor already possess a "lawfully obtained copy" and the total amount of material mounted in the electronic reserves is "brief relative to the total assigned reading for that course." The electronic file should include the original’s copyright notice, and the standard admonition that making a further copy may be subject to federal copyright law should be prominently displayed on any institutionally-owned computers or work stations used to access the reserves. Access must be limited to those enrolled in the class with verifiable, class-specific passwords. Downloading is permitted. As and when these Guidelines gain more support, they will probably serve as "safe harbors".

... Continue to Part VI
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