The purpose of this document is to establish guidelines for what constitutes "fair use" under copyright law of materials in the library's reserve collection. In drafting this document, many aspects of copyright law have been taken into consideration, as well as what the courts have ruled in regards to certain aspects of copyright law.
It has been decided that clear guidelines need to be established in terms of "fair use" so that there will be no question on the part of teaching faculty or library faculty as to whether or not a given item would be allowable in the library's reserve collection.
The sections of the U.S.C that deal with copyright law as it concerns the library and the larger university community are found in Title 17, specifically 107, 108, and 117. Because of its brevity and its central roll in the issues that this document seeks to address, 107 is presented in its whole, below:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phone records or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors
Because of the vagueness of the law, it behooves us is in the University's best interest to create guidelines of our own based on what the courts and law scholars have interpreted these sections of the law to mean.
As we are a non-profit educational entity, we have little to worry about from the first factor. The courts have also been reluctant to use factor four to determine whether a particular use is unfair, as it tends towards circular logic. Thus, this document's guidelines mainly concern the second and third factors laid out in 107.
The concept of "fair use" only extends to certain kinds of works. Keep these guidelines in mind when deciding to place materials on reserve.
Original works should be placed on reserve in lieu of reproductions whenever possible. Having originals on reserve does not present the myriad problems caused by photocopies, etc.
The following are able to have unlimited numbers of photocopies made:
Uncopyrighted Published Works
Published Works with Expired Copyrights
U.S. Government Publications
In general, reserve materials should be of a factual nature, as opposed to creative works. That is to say, science textbooks are more protected under Title 17, 107 than poetry anthologies.
Unpublished works are given automatic copyright protection under the law, therefore faculty members should try to get permission from the owner of any unpublished works that he or she may wish to reproduce for reserve purposes.
No works that are intended to be consumable (i.e., workbooks, exercises, test booklets, answer sheets, etc.) will be placed on reserve without permission from the copyright holder.
Many times illustrations, diagrams, maps, etc. are copyrighted separately from the work in which they appear. If this is the case, then permission from the copyright holder of the graphic is necessary to place a reproduction of that graphic on reserve.
The following guidelines are based upon the general consensus of libraries and librarians, legal scholars, etc. as regards fair use of reproductions.
Photocopied poems should be 250 words or less, or no more than 250 words of a longer work.
Photocopied prose works should be 2500 words or less, or no more than 2500 words of a longer work, not to exceed 10% of the entire work.
One reproduction of a graphic per book or periodical issue (subject to limitations discussed above)
One chapter out of a book.
No more than three pieces from any one collective work or periodical volume for a given term.
Reproductions of materials to be placed on reserve for multiple courses need permission from the copyright holder.
Although there are no specifics on time limits to fair use in Title 17, and the courts have yet to discuss this matter directly, in relation to other copyright matters there is a general agreement that there is some kind of limit. As such, we have developed these guidelines.
Originals may be left on reserve from term to term. Since originals either are or could become part of the library's regular collection, there are no issues with leaving them on reserve for more than one term.
Conversely, reproductions may only be left on reserve if permission has been granted by the copyright holder.
There are some other things to consider when placing materials on reserve. These guidelines grow out of the fourth factor. Though judges have not used it as a the sole factor in deciding if a particular use was "fair use," they do consider it in terms of punishment if they have determined by the other three factors that a particular use was "unfair."
Reserves should not substitute for class readings. Reserve materials should be supplementary readings, serving as research material. If you place materials on reserve which are required reading, you need to secure permission first.
In addition, students should not be ordered to make copies, printouts, etc. of anything on reserve. If students will need non-voluntary copies of reserve materials, then the professor needs to secure copyright permission.
Creation of an anthology or collective work by concatenating together photocopies of copyrighted material has recently run into trouble with the courts. Professors should avoid doing this without first getting permission from the copyright holders of the individual pieces.
Because online reserves are essentially reproductions, all of the above issues apply. Furthermore, with the advent of more recent, broad, vague (and possibly unconstitutional) laws dealing with digital media and copyright (i.e., the DMCA), extra care needs to be taken with online reserves and copyright. With this in mind, we came up with the following guidelines.
All online reserve materials are subject to all rules and regulations governing ordinary reserve materials.
Online reserve materials will be accessible by course number, only.
Online reserve materials will all be password protected. That password will be available to students from their professors, or from library personnel upon presenting proof of enrollment.
Materials will not be placed on online and physical reserve at the same time. When possible, if the library owns the original the original should be placed on reserve.
The library will not place materials online if neither the library nor the requesting professor owns the original without permission from the copyright holder.
This document is not, by any means, an exhaustive analysis of all the legal and ethical issues involved in copyright and "fair use." We feel, however, that it is a good general guide to what is and is not permissible. If you have any doubt about placing something on reserve, or if you wish to place something on reserve that clearly violates the guidelines given here, then seek written permission from the copyright holder.