Copyright and Fair Use for Academic Course Reserves

Meet Lois Wiley

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

Meet Dr. Brothers

Dr. Brothers wants to put a book on reserve for his class: Economics for the Financially Challenged.

The Showdown

What They Watched

Ms. Wileys 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 librarys 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:

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)
1.

The factors of Fair Use are deliberately vague. . .

so, Ms. Wileys library has established some specific rules to protect itself: 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 Ms. Wiley 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 librarys reserves policy.

What could happen if Jane violates copyright law?

If Ms. Wiley decides to put the book on reserve in

order to appease the professor, what could the consequences be for the her 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. Ms. Wiley could lose her job.

How Much Happiness?

By allowing students access to materials the professor

believes important to their studies, Ms. Wiley enhances the students education. This makes the students, their parents, and Dr. Brothers happy. But, by violating copyright law and the fair use doctrine, the librarian would make the books author and publisher unhappy. And, by violating the librarys reserve policy, Ms. Wiley would make the library administration and the university unhappy.

Duties Theory Analysis

Kants 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 Ms. Wiley Have?

Duty to keep her promises as a library employee. As an

employee, Ms. Wiley 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 Ms. Wiley 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 professionals duty on p. 28.

Conclusions
Although we are greatly sympathetic to Dr. Brothers and his students, we believe that based on a combination of Consequences

Theory and Duties Theory Ms. Wiley should not put the book on reserve for Dr. Brothers.

However, we do think there are some legal compromises possible:

Dr. Brothers could contact the publisher in

order to gain permission to place the whole book on reserve. While he is waiting for a response, Dr. Brothers could make a copy of a small section, 10% or less, of the book to place on reserve for students.