I’ve been working on a document that lays out the rationale for our electronic reserves policies as they relate to copyright. And as I did so, I realized that it’s hard to write such documents without using the phrase “we believe.” I found myself systematically going back through my drafts and notes looking for ways to rephrase things so that it reads less like a statement of belief and more like informed decisions. Systematically removing words and phrases from drafts can be tedious, but this time it was fascinating because it foregrounded just how much the act of interpreting copyright law relies on good faith efforts to make sense of antiquated, misunderstood, emotionally charged, vague, and tangled laws.
This is even more the case when making sense of the law as it applies to electronic reserves. Reserve services are governed by Section 107 (the “Fair Use” section).* Unfortunately, one of the best ways to know if any particular interpretation of Fair Use is correct is to see how court cases have handled that issue, and no court cases have yet dealt with electronic reserves.** This means that libraries everywhere have to make one fundamental decision without guidance from the courts: are electronic reserves more like coursepacks or more like print reserves? The former assumes an element of commerce in the creating and selling of the coursepack that isn’t present in electronic reserves, but offers the slim comfort that the creation of coursepacks has been tested in the courts.*** The latter builds on the idea of extending easy access to a subset of the library’s collections to a particular population of students, but it leaves libraries with no legal precedent to lean on.
And having decided between these two options, libraries then have to make a whole host of related decisions about how far Fair Use extends, what mechanisms should be in place to guard against copyright infringement, and how to make sure that all of this stays out of the way of the students’ learning experience as much as possible. All of this with only legal analogy, not legal precedent, as a guide.
Is it any wonder, then, that documents explaining the rationale behind our policies are more statements of belief than they are statements of fact?
This I believe: electronic reserves are not coursepacks. Yet they are copies of original articles and must therefore undergo the Four Factor test for each and every article, each and every time they are used. I also know that Fair Use was invented with education in mind, and therefore I believe we should weigh those Four Factors with confidence in the knowledge that they were laid out for us, that they are speaking to us, and that they are not grasses laid over legal snares that are lurking, waiting to torture us and demand our first-born children in payment for unforeseen infringement.
* Unfortunately, neither Section 108 (provisions for library copying) nor Section 109 (the “Doctrine of First Sale”) apply to electronic reserves. If they did, things would probably be a lot clearer cut.
** A case against Georgia State University is still in the works.
*** See the first two cases listed here.