Using Content: Library Reserves

Frequently Asked Questions about E-Reserves From The Association of American Publishers (AAP)

Applying Fair Use in the Development of Electronic Reserves Systems From several leading library associations

 
Frequently Asked Questions about E-Reserves From The Association of American Publishers (AAP)
Test Your Copyright Knowledge
What You Need To Know

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. For example:

  • 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 systems.

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 use"?
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 or payment.

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 e-reserves?
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.