Copyright and Fair Use for Academic Course Reserves

Meet Jane Jane is a librarian at her local university library. She is in charge of handling all course reserves.

Dr. Smith wants to put a book on reserve for his Introduction to Philosophy class. Meet Dr. Smith

Jane’s Library & Its Course Reserve Policy All libraries rely on the First Sale Doctrine for the right to circulate materials. Fair Use is an important part of the library’s reserve policy. The library has added specific guidelines to its reserves policy.

First Sale Doctrine The holder of a lawfully owned copy is authorized “without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy” (codified at 17. U.S.C. 109 [a]). Libraries do this when they purchase a copy (first sale) and loan the book, periodical, or film out while not paying the copyright owner anything further. “The first sale doctrine supports the notion of subsidized browsing, a critical concept in Librarianship” (Rubin, p. 335).

Fair Use Doctrine The Fair Use Doctrine allows libraries to place material on reserve if it meets certain criteria: 1. The purpose and character of the use, including whether such use commercial or for nonprofit educational purposes 2. The nature of the copyrighted work 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole 4. The effect of the use upon the potential market for, or value of, the copyrighted work (Rubin, p. 335)

The factors of Fair Use are deliberately vague... so, Jane’s library has established some specific rules to protect themselves If an item is not owned by the library, it can only be put on reserve for one semester Because, repeated reserves of such an item could be seen as affecting the potential market value of the item After one semester, the item will be placed on a list of items that cannot be placed on reserve

Our Ethical Theories Consequences Theory Duties Theory

Consequences Theory Analysis The main example of a consequence-based theory is utilitarianism. According to utilitarianism, goodness is measured in terms of the amount of happiness in the world. Thus, the right action is the one that maximizes overall happiness (Fallis, p. 27).

What are the consequences? What are the consequences that could result from the librarian putting the book on reserve? The professor and his students could use the text. The library and the librarian could be in violation of both the First Sale Doctrine and the Fair Use Doctrine. Thus causing damage to the author and publisher. The librarian would be violating the library’s reserves policy.

What could happen if Jane violates copyright law? If the librarian decides to put the book on reserve in order to appease the professor, what could the consequences be for the librarian or the library? “Willful copyright infringement is a federal crime, punishable by imprisonment, fines or both” (Minow, 2003) A copyright owner can also pursue a lawsuit in civil court, which could lead to large monetary damages being awarded to the copyright owner. The librarian could lose her job.

How Much Happiness? By allow students access to materials the professor believes important to their studies, the librarian enhances the students’ education. This makes the students, their parents, and the professor happy. But, by violating copyright law and the fair use doctrine, the librarian would make the book’s author and publisher unhappy. And, by violating the library’s reserve policy, the librarian would make the library administration and the university unhappy.

Duties Theory Analysis Kant’s theory: right action is the action that could be made into a universal law to the benefit of all of humanity (Fallis, p. 28). Ross’ theory: based on following our moral intuition, and includes “a duty to keep our promises, a duty to distribute goods justly (justice), a duty to improve the lot of others with respect to virtue, intelligence and happiness (beneficence) and a duty to avoid injury to others” (Fallis, p. 28).

What Duties Does the Librarian Have? Duty to keep her promises as a library employee. As an employee, the librarian has promised to follow library procedures. If she violates library procedures, she is breaking her promise. Duty to keep her promises as a citizen by following the laws of her country and respecting copyright law. Duty to avoid injury to others, in that if she provides access to the materials, she could be injuring the author and publisher by preventing them from making money on their product.

Other Duties to Consider: Duty to improve the lot of others with respect to intelligence by providing materials important to their education. Duty to distribute goods justly because the items are shared equally. Duty to provide access to information by making the materials available. Access to information is an additional duty that Fallis suggests as a library professional’s duty on p. 28.

Conclusions Although we are greatly sympathetic to the professor and his students, we believe that based on a combination of Consequences Theory and Duties Theory the librarian should not put the book on reserve for the professor.

However, we do think there are some legal compromises possible: The professor, himself, could contact the publisher in order to gain permission to place the whole book on reserve. While he is waiting for a response, the professor could make a copy of a small section, 10% or less, of the book to place on reserve for students.