UC Electronic Reserve Legal Battle Brewing

["Dave Farber" <dave () farber net>]

------- Original message -------
From: Joseph Lorenzo Hall  <joehall () gmail com>
Sent: 7/4/'05,  13:11

http://chronicle.com/daily/2005/04/2005040701t.htm
 
Thursday, April 7, 2005
 
Legal Battle Brews Over Texts on Electronic Reserve at U. of
California Libraries

By SCOTT CARLSON 

 Publishers are objecting to an electronic reserve system at the
University of California in which libraries scan portions of books and
journals and make them available free online to students.

 In recent months, lawyers for the Association of American Publishers
have sent letters to the university that object to the use of
electronic reserves on the San Diego campus. The publishers say that
the use of electronic reserves is too extensive, violating the "fair
use" doctrine of copyright law and depriving them of sales.

 University officials counter that the electronic reserves at San
Diego are well within the bounds of fair use. They worry that the
letters portend a lawsuit.

 "They clearly had a lawsuit in mind when they started contacting our
office," said Mary MacDonald, a lawyer for the university system.
"Their position was that the 'evidence' showed that we weren't
following fair-use guidelines, that this was a national issue, and
that the set of facts gave them a good platform from which to take
legal action."

 Ms. MacDonald said she sent a "comprehensive response" to the
association in February, laying out how the university's electronic
reserves respected fair use. She said she had not heard from the
publishers since then.

 Allan R. Adler, vice president for legal and governmental affairs at
the publishing group, said the university's responses "haven't been
very satisfactory."

 "We are continuing to look at the issue and to contemplate what
additional steps we need to take," he said. He would not say what
those steps might be.

 Electronic reserves have become a popular method for distributing
reserve reading at college libraries around the country. While
students once had to turn up at the library to take supplemental
readings from a shelf, colleges and universities can now post such
articles and other materials online, where students can get access to
them from, say, a dormitory room.

 At the University of California and at other institutions,
electronic-reserve materials are generally protected by passwords, so
that only students can see them.

 Offering limited amounts of supplementary materials for educational
purposes, without having to pay royalties, is allowed under fair-use
doctrine. But how much access libraries can provide is not always
clear under the law.

 Mr. Adler contends that professors and libraries are offering too much. 

 "We are finding," he said, "that far from being supplementary reading
or additional reading supplied by the teacher, in many classes now it
is becoming the required reading and the only reading."

 He said that electronic reserves have become more like "course
packs," collections of required reading materials that, in earlier
days, were photocopied from books and journals.

 For the publishers, there is a great distinction between materials
that constitute "reserves" and those that compose a "course pack." In
the 1990s, publishers won a series of lawsuits against commercial
companies, such as Kinkos, that were copying and selling materials for
course packs. Courts determined that the publishers, as the copyright
holders, should be paid for the materials.

 Mr. Adler said he objects even to the notion of electronic reserves.
This is not like the old days, he said, when one copy of a reading was
at the library, and students had to hike there to read it.

 "We are talking about putting materials in digital form onto a
library server, and then allowing students to have access to it as
they choose, including in many instances the ability to download and
print copies," he said. "That's not the same thing as traditional
reserves."

 Ms. MacDonald, the University of California lawyer, said that the
reserve system had not affected publishers' profits.

 She said that the publishers first contacted the library at San Diego
in 2003 with a list of about 140 courses, the names of the professors
teaching the courses, and the number of pages available on reserve for
each course.

 Ms. MacDonald and other system representatives met with the
publishers' group last November, and then conducted an investigation
of electronic reserves at San Diego. She insisted that the practice
conforms with the principles of fair use.

 "I don't think it would do anything for their cause to sue us, and I
don't think they would win," she said. "If they were to sue us, they
could well be making a very big public-relations mistake because our
faculty are world-renowned, and we are the very people who provide
their publishers with things to publish. There is a growing discontent
among UC faculty about prices the publishers are charging, and faculty
are starting to look at other avenues for publication of their work."

 Jonathan Franklin, associate law librarian at the University of
Washington and a fair-use scholar, said that because the doctrine had
not been well defined, some institutions have let fear of litigation
determine how, or whether, they set up electronic reserves.

 "It's very vague as to what people can do, and institutions are so
risk-averse that they license things they wouldn't normally have to
license," he said. Still, he said, a legal battle might help clarify
matters. "I would look forward to a resolution that was public," he
said, "and that set out guidelines and standards under which
universities could successfully offer electronic course reserves."
 

(In accordance with Title 17 U.S.C. Section 107, this material is
distributed without profit to those who have expressed a prior
interest in receiving the included information for research and
educational purposes.)

-- 
Joseph Lorenzo Hall
UC Berkeley, SIMS PhD Student
<http://pobox.com/~joehall/>
blog: <http://pobox.com/~joehall/nqb2/>

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