What are "e-reserves"?
The term "e-reserves"—short for "electronic
reserves"—is commonly used to describe course readings
that are digitized and made available on an academic department
or library network site to students enrolled in the class, who
usually each need a password to access the readings and then may
download and print their own copies. Unlike traditional paper
reserves, posting readings in e-reserves always requires making
copies of the original materials, and e-reserve systems typically
make the readings available simultaneously to all students in
the class, anywhere or anytime they choose.
For copyright purposes, how do e-reserves differ from
printed course packs?
Where the readings made available in an e-reserve system
substitute for a printed course pack, nothing distinguishes e-reserves
from course packs in terms of basic copyright treatment. Permissions
must be cleared for such use of materials in an e-reserve system
just as they must be cleared for use in course packs. Course packs
generally consist of course readings that are selected by the
instructor, compiled by a third party or the instructor's institution,
and purchased by students as bound paper copies. The third party
or instructor's institution is obliged to obtain permission from
whoever holds copyright in the reading materials for reproducing
and distributing copies of the materials in print. The copyright
holder may charge a fee for granting such permission, and the
fee is generally determined by the amount of material and number
of copies involved.
Do publishers oppose the use of e-reserves?
Publishers want to support effective means of bringing
learning to students, and many publishers create, publish, and
license content specifically for use in educational settings.
The use of digitized copyrighted content in an e-reserve system
does not exempt users from paying for the content, unless the
copyright owner specifically agrees to its free use or the use
in the particular circumstances falls within the boundaries of
"fair use." Therefore, whether it is called "e-reserves"
or something else, the use of copyrighted content made available
to students electronically as course reading materials should
be based on permission obtained from the copyright owner and paid
for just as any other copyrighted content that is reproduced and
distributed to all students in the course.
Publishers encourage institutions to publicly post their e-reserve
policies online, and to similarly disclose the title and other
bibliographic information for each work placed on e-reserve, at
the beginning of the term.
Does the fact that they are housed in the library or
the academic institution mean that the use of copyrighted e-reserve
material qualifies as "fair use"?
No. This fact alone does not ensure that a use is fair.
If the use does not qualify as fair use when all of the four factors
are analyzed, giving due weight especially to the impact of the
use on the potential market for the original work, then it is
a violation of copyright whether or not the provider of the material
is a nonprofit educational institution.
How do principles of "fair use" in copyright
law apply to materials included in e-reserve systems?
As a general rule, if use of the content would not be
considered "fair use" in hard copy, it is not likely
to be considered "fair use" in digitized form, whether
as part of an e-reserve system or otherwise.
The applicability of "fair use" principles
to materials in e-reserve systems will, as in all "fair use"
cases, depend on the particular facts and circumstances involved.
- If the amount of material from one work included in an e-reserve
system is more than minimal, and the work itself can be readily
purchased or licensed for use in an e-reserve system, the inclusion
of that material in the e-reserve system is not likely to constitute
"fair use" because its inclusion – when considered
under the statutory factors – would have a direct, negative
effect on the "potential market" for the sale or licensing
of the work.
- If e-reserve postings are used to substitute for the purchase
of books, or for the purchase or licensing of other copyrighted
materials that would be used in course work, their use is not
likely to constitute "fair use."
- There is no "first-time" exception in fair use;
if use of the content does not qualify as fair use, it should
not be used as such, even once.
For a detailed discussion of "fair use" principles
as applied to educational institutions generally and to course
packs in particular, see "Questions & Answers on Copyright
for the Campus Community, 5th Edition," a joint publication
of the Association of American Publishers (AAP), Association of
American University Presses (AAUP), Copyright Clearance Center
(CCC), National Association of College Stores (NACS) and Software
and Information Industry Association (SIIA). You can download
a copy of the brochure in PDF form without charge at www.publishers.org.
The same principles enunciated there with respect to the use of
copyrighted materials in printed course packs apply to e-reserve
Can copyrighted materials acquired in digital formats
under license agreements be used in e-reserve systems?
The answer to this question depends entirely on the terms
of use in the license that is agreed upon between the institution
and the vendor. Some vendors explicitly provide for the use of
the material in e-reserves or other online learning systems as
part of their license, and some do not. See what the license says
about such use.
Doesn't restricting use of the e-reserve material to
enrolled students by means of password access make it "fair
No, the imposition of password controls on access to
copyrighted materials does not, by itself, make use of the materials
"fair use." Whether the materials are made available
for use electronically or through conventional hard copies, fees
are typically based in part on the number of students who have
access to the material. Password protection ensures that the number
of students with access does not exceed the number for whom fees
are paid, but it does not in itself authorize use without permission
Similarly, "checkout" procedures that, for example,
may limit the period of time that any download is available, or
limit the number of copies that can be printed from the download,
or preclude digital reproduction and distribution, may be relevant
to a determination of the appropriate permissions fee to be charged,
but such protections do not by themselves render a particular
use "fair use." It should be noted, however, that copyright
owners are more likely to grant permissions for use in e-reserve
systems that employ passwords and other reasonable protections
to safeguard against the mass reproduction and distribution of
e-reserve materials that might otherwise occur.
How do I get permission to use copyrighted content for
Permission to use copyrighted content for e-reserves
may be obtained in the same way that permission would be obtained
for use of the content in a printed course pack or as a classroom
handout: let the publisher know what material you want to use,
and how many students will have access to it, and the publisher
will decide whether or not to grant permission and what price
(if any) to charge for material that can be used.
Many publishers have authorized Copyright Clearance Center to
handle permissions requests for use of certain copyrighted materials.
Online permission is available from Copyright Clearance Center
for some materials at, www.copyright.com.
In addition, publisher contact information for clearing permissions
is available on the AAP
web site at http://www.publishers.org/about/rpacurls.cfm
and at the web site of the Association
of American University Presses at http://www.aaupnet.org/membership/directory.html.