Libraries have been wrestling with an important issue for years: how can we (and should we) provide reserve materials in electronic formats? In print this was never an issue; if students needed to read an article, libraries could put it on reserve and students could copy it for personal study, or, alternatively, a professor could ask a copy shop to create a course pack which students could then purchase. Recently a case came up in court Cambridge U. Press et. al. vs. Patton (aka the “Georgia State Case”) which essentially is wrestling with that fundamental issue of what libraries can and cannot do with electronic reserves. Fundamentally, the answer comes down to one’s interpretation of fair use.
The courts did not exactly solve the problem for libraries (and the case is still ongoing). They have, however, affirmed some important principles to keep in mind:
- Fair Use has to be done on a case by case basis. There are no broad rules that apply across the board to different kinds of material.
- The four factors are not a checklist. If you have 3 of them, you may not have a fair use. If you only have one of them, you may have a fair use. It depends on the circumstances and the purpose of the use.
- Speaking of checklists, the advice provided in various recommendations such as the Classroom Copying Guidelines and other forms of best practices are not legally binding. They can help to think about issues, but will not necessarily help you in court.
- Library reserves (electronic or print) are not the same as coursepacks. There are certainly similarities, but the legal cases that apply to Kinkos and other companies which sell copies of articles to students do not apply to the services that libraries provide.
- Most importantly, libraries have to pay attention to the market for reserve material. If libraries potentially affect the publishers’ ability to make money from their products, then it is even more important to look much more thoroughly at the other factors of fair use.
To that last point, there are certain questions that libraries need to consider whenever they assert fair use.
- Does the use of the material clearly serve the purpose (pedagogical or otherwise) of the course or argument, and, perhaps more importantly, would that purpose be clear to a judge or someone from outside assessing the use?
- Has the professor, assistant or researcher used whatever they need to make their point, but no more than is needed to make their point? Also, would an outsider (judge or publisher) agree that they used only the amount necessary to make their point?
So, as long as libraries are not causing market harm and they keep in mind those questions, then the courts have supported the rights of fair use. Nevertheless, the questions of how traditional reserve functions fit into an electronic world are still unanswered. More importantly, however, the community needs to decide its interpretation of fair use in certain contexts. Fortunately, the Association of Research Libraries’ Code of Best Practices for Fair Use provides a great deal of help in that regard, and can help individual libraries in assessing these questions.
If you’re interested in learning more, here are some further blog posts from real lawyers about these recent cases:
- Brandon Butler (American University) – “Transformative Teaching after GSU”
- Kevin Smith (Duke) – “GSU appeal ruling — the more I read, the better it seems”
- Nancy Sims (U. of Minnesota) – “11th Circuit Rules On Georgia State Fair Use Case”