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arl-ereserve: 2 big cents on Fair Use

arl-ereserve: 2 big cents on Fair Use

2 big cents on Fair Use

Jeff Rosedale (rosedale@columbia.edu)
Tue, 24 Jun 97 10:17:10 EDT 

Date: Tue, 24 Jun 97 10:17:10 EDT
From: Jeff Rosedale <rosedale@columbia.edu>
To: arl-ereserve@cni.org
Subject: 2 big cents on Fair Use
Message-Id: <CMM.0.90.4.867161830.rosedale@bonjour.cc.columbia.edu>

While any discussion of Fair Use is interesting and possibly
illuminating, there are some basic principles that should be understood
before getting into the issue:

1.  Fair Use is not a single concept that can be defined exclusively.
It is a defense against a charge of copyright infringement that will be
judged on a case-by-case basis according to the infamous "four factors"
(everlasting thanks to Lolly Gasaway for singing these):

-purpose and character of the use
-nature of the copyrighted work
-amount and substantiality used
-real or potential effect on the market for the work

I mention this because lots of people over the years have expressed a
desire to have fair use "defined", or to ascertain with precision
whether various electronic reserves scenarios constitute a "fair use".
The desire for certainty is understandable, but it also epitomizes an
aversion to *any* risk which has a needlessly chilling effect on
innovation.

2.  There is going to be lots of disagreement and substantial variation
on what constitutes a fair use and what is infringement- certainly
between publishers and libraries, and even among libraries.  The
stalemated CONFU effort to define Fair Use e-reserves guidelines
confirms this.

This fact notwithstanding, dozens of libraries are moving ahead with
projects that proceed on assumptions of fair use that have been
hammered out locally, using all existing case law and model policies,
with the assistance of general counsel and other local experts.  In
many cases, this is part of a campus-wide dialogue on intellectual
property rights in general- which is an extremely important discussion
to have nowadays and for the future.

3.  Whatever you decide to do locally, have a local or model policy that
supports it.  As I implied above, there is support and some precedent
for varied interpretations on what will or will not be possible for an
electronic reserves system to do without seeking copyright permissions.
Being reckless by mounting copyrighted materials on the Web without any
careful consideration of how and why your system operates is not a wise
course of action.  There are those who might relish an opportunity to
bring a suit against an institution sporting such a poorly considered
arrangement, hoping to imply that all electronic reserves uses 
without permissions are infringing.  Let's not allow that to happen!

4.  I am told that large heavy-hitting library organizations are
preparing to step up and publicize some "best practices" and model
policies in this area.  This should help give more guidance to current
and aspiring e-reserves practitioners.

		My cents are spent now.

			--Jeff
		rosedale@columbia.edu

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