Against the Grain
Volume 19 | Issue 4
Article 9
2007
Electronic Reserves and the Failed CONFU
Guidelines: A Place to Start Negotiations
Bryan M. Carson J.D, M.I.L.S.
Western Kentucky University, bryan.carson@wku.edu
Follow this and additional works at: http://docs.lib.purdue.edu/atg
Part of the Library and Information Science Commons
Recommended Citation
Carson, Bryan M. J.D, M.I.L.S. (2007) "Electronic Reserves and the Failed CONFU Guidelines: A Place to Start Negotiations,"
Against the Grain: Vol. 19: Iss. 4, Article 9.
DOI: http://dx.doi.org/10.7771/2380-176X.5099
This document has been made available through Purdue e-Pubs, a service of the Purdue University Libraries. Please contact epubs@purdue.edu for
additional information.
Impact of the Digital Millennium ...
from page 28
many times over and displacing sales. Allowing libraries and archives to deliver copies to
users electronically, unless reasonably limited,
could potentially cause significant harm to
owners by undermining their market.
Online technologies allow libraries and
archives to serve anyone regardless of geographic distances or membership in a community. Many of the Section 108 exceptions
were based on the assumption that certain
natural geographical limitations would prevent
unreasonable interference with the market for
the work. If users can electronically request
copies from any library, that natural friction
would break down, destroying the balance
originally struck by the provisions.
Conclusion
Aside from the limited exceptions discussed herein, libraries are subject to the
provisions of 1201. Libraries may be subject
to vicarious liability for the actions of their
staff and even library patrons. Therefore, it
is necessary to have a copyright compliance
policy and ensure sure that library staff is aware
of the policy. Make sure that staff is educated
in how to comply with copyright law.18 Post
appropriate copyright notices in conspicuous
places for library patrons. Keep licensing
agreements current and make sure they include
the rights necessary to lawfully gain access and
whatever copying is necessary for effective use
by library patrons.
References
Balas, J. (2007). I’m a librarian, not a
lawyer! Computers in Libraries, 27(6): 3436. Retrieved July 8, 2007, from Library,
Information Science & Technology Abstracts
database.
Conf. Rep. No. 94-1733 (1976). (Conference Report for the Copyright Act of 1976.)
Crawford, W. (2005, April). Whose rights
does DRM manage? EContent, 28(4): 42-42.
Retrieved July 8, 2007, from Library,
Information Science & Technology Abstracts
database.
Dames, K. (2006, September). Framing the
Copyright debate. Information Today 23(8),
22-22. Retrieved July 8, 2007, from Library,
Information Science & Technology Abstracts
database.
Digital Millennium Copyright Act, Pub.
L. 105-304, 112 Stat. 2860 (Oct. 28, 1998).
Library of Congress Copyright Office.
(1983). Report of the Registrar of Copyrights:
Library Reproduction of Copyrighted Works.
Retrieved July 8, 2007, from http://www.
copyright.gov/reports/library-reproduction1983.pdf.
Library of Congress. Section 108 Study
Group home page. Retrieved July 8, 2007, from
http://www.loc.gov/section108/study.html.
Library of Congress, United States Copyright Office. (June 1998). Circular 21, Reproduction of Copyrighted Works by Educators
and Librarians. Retrieved July 8, 2007 from
http://www.copyright.gov/circs/circ21.pdf.
71 Fed. Reg. 70434 (Dec. 4, 2006). (Notice
from the Office of Strategic Initiatives and the
Copyright Office establishing the Section 108
Study Group dealing with copyright exceptions
for libraries and archives.) Available at http://
www.copyright.gov/fedreg/2006/71fr70434.
pdf.
Reitz, J. Digital rights management
(DRM). Online Dictionary for Library and
Information Science. Retrieved July 8, 2007,
from http://lu.com/odlis.
Rasenberger, M., & Weston, C. (April
2005). Overview of the Libraries and Archives
Exception in the Copyright Act: Background,
History, and Meaning. Retrieved July 8, 2007,
from http://www.loc.gov/section108/docs/
108BACKGROUNDPAPER(final).pdf.
S. Rep. No. 94-473 (1975). (Senate Report
for the Copyright Act of 1976.)
Sonny Bono Copyright Term Extension
Act, Pub. L. 105-298, 112 Stat. 2827 (October
27, 1998).
Stegmaier, M. (2005). Foreword, Digital
Millennium Copyright Act: 2005 Supplement.
Silver Springs, MD: Pike & Fisher.
Endnotes
1. Jane M. Larrington is a Fellow at the
University of Arizona James E. Rogers
College of Law Library and a student at
the University of Arizona School of Information Resources and Library Science
(M.L.S. expected December 2007). She
received her J.D. from the University of
Michigan Law School and her B.A. from
Carleton College. Jane’s email address is
<jane.larrington@law.arizona.edu>.
2. Reitz, J. Digital rights management
(DRM). Online Dictionary for Library
and Information Science. Retrieved July
8, 2007.
3. Digital Millennium Copyright Act,
Pub. L. 105-304, 112 Stat. 2860 (Oct. 28,
1998).
4. 17 U.S.C. § 1201.
5. 17 U.S.C. § 106.
6. 17 U.S.C. § 107.
7. 17 U.S.C. § 109(a).
8. 17 U.S.C. § 107.
9. 17 U.S.C § 108.
10. Sonny Bono Copyright Term Extension Act, Pub. L. 105-298, 112 Stat. 2827
(October 27, 1998).
11. S. Rep. No. 94-473, at 70 (1975).
12. Library of Congress Copyright Office,
(1983). Report of the Registrar of Copyrights: Library Reproduction of Copyrighted
Works. Copyright Office’s 1983 Report.
Retrieved July 8, 2007, from http://www.
copyright.gov/reports/library-reproduction-1983.pdf.
13. 17 U.S.C. § 110(1).
14. Technology, Education and Copyright
Harmonization Act of 2001, Pub. Law107273, 116 Stat. 1758, (November 2, 2002);
codified at 17 U.S.C. § 110(2).
15. National Commission on New Technological Uses of Copyrighted Works
(CONTU). Final Report. Available at
http://digital-law-online.info/CONTU/
contu1.html.
16. Conf. Rep. No. 94-1733 (1976).
17. 17 U.S.C. §108.
18. For a list of useful resources for keeping current on issues related to technology,
law, and libraries, see Balas (2007). Dames
(2006) discusses how “Big Content” (large
corporation that control vast copyright portfolios) has successfully framed the debate
over copyright in digital media. Crawford
(2005) provides a clear, concise overview of
the issues at stake in crafting policy around
digital rights management.
Electronic Reserves and the Failed
CONFU Guidelines: A Place to Start Negotiations
by Bryan M. Carson, J.D., M.I.L.S. (Associate Professor/Coordinator of Reference & Instructional Services, Western
Kentucky University Libraries, Author, “The Law of Libraries and Archives” (Scarecrow Press), Ed.D Student, Higher Ed.
Leadership & Policy, Vanderbilt University, 1906 College Heights Blvd. #11067, Bowling Green, Kentucky 42101-1067;
Phone: 270-745-5007; Fax: 270-745-2275) <bryan.carson@wku.edu>
I
ntellectual property is seldom a matter of
hard-and-fast rules. In most library-related
copyright disputes, both sides rely upon
real legal principles but with different interpretations. One example of these differences
involves the legality of electronic reserves in
libraries.
30 Against the Grain / September 2007
Academic and school libraries base the
legality of their reserves on the Fair Use provisions of section 107 and the library exceptions
in section 108 of the 1976 Copyright Act.1
Fair Use by necessity involves a balancing act
between the property rights of the author/publisher and the First Amendment rights of the
individual to comment, criticize, and use the
material for scholarship.2 Yet a use that is fair
is in the eye of the beholder, and what a reader
sees as Fair Use may be copyright infringement to the publisher. Section 108(b) of the
Copyright Act allows libraries to create a copy
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Electronic Reserves ...
from page 30
for purposes of preservation and security as a
surrogate for the actual journal issue. Section
108(f) also allows individual patrons to make
a copy for themselves.
The legality of reserves also relies upon
the provisions of a publishers’ agreement on
multiple classroom use that was included in the
House of Representatives’ report accompanying the 1976 Copyright Act.3 According to the
agreement, a teacher can make multiple copies
for classroom use as long as each student only
receives one copy. The copy must be brief and
must contain a notice of copyright.4 If the professor wishes to reuse the material on reserve,
the library must obtain a license.
The problem is that the publishers’ agreement is now 30 years old, was never enacted
into law, and does not mention electronic
reserves. Similarly, section 108(b) is based
on physical rather than electronic copies.
Thus, there are questions about the legality
of e-reserves.
The position of the Association of American Publishers (AAP) is that there is no
difference between an e-reserve system and a
course pack.5 In two cases — Kinko’s Copies6 and Michigan Document Services7 — the
U.S. Supreme Court ruled that the creation of
course packs required copyright licenses. It did
not matter that the materials were being put to
an educational use; the commercial nature of
the businesses, and the fact that these copies
were subsequently sold, meant that the copy
shops needed permission to duplicate in order
to avoid copyright infringement.
However, the American Library Association (ALA) believes that section 108 and
the publishers’ agreement should still apply,
regardless of the medium. There were some
differences between the facts of these cases
and the library e-reserve model. The ALA
contends that nothing is being sold, and there
is no commercial transaction taking place. The
ALA and AAP are currently negotiating to
resolve this impasse.
One possible solution lies in the guidelines
of the Conference on Fair Use (CONFU),
which met monthly between 1994 and 1996.
The goal of CONFU was to create guidelines
for libraries, including reserves.8 Because there
was not agreement by all of the conference
members, the guidelines never took effect
legally. However, many libraries voluntarily
follow the guidelines, which provide much
valuable direction.
According to the CONFU proposal,
e-reserves would use similar guidelines to
those included in the 1976 publishers’ agreement. There would be a brevity requirement,
allowing “short items (such as an article from
a journal, a chapter from a book or conference proceedings, or a poem from a collected
work) or excerpts from longer items . . . [such
as] chapters, poems, and other works that are
of such length as to constitute a substantial
portion of a book, journal, or other work of
which they may be a part.”9 The electronic
32 Against the Grain / September 2007
image must contain a copyright notice and be
made from a copy that was legally owned by
the institution or the instructor. In addition, the
suggested CONFU provisions specified that
the material on e-reserve “should be a small
proportion of the total assigned reading for a
particular course.”10
Another provision of the suggested guidelines was that the works be
limited by password to students
enrolled in the course. As is the
case with classroom copies and
paper reserves, a license should
be obtained if the material
will be reused. According
to Kenneth Crews, “Although the guidelines are
not explicit on the following
points, drafters also anticipated that students would access the materials from remote
locations, and would be allowed
to download and print individual
copies for private study.”11
The reason the proposed guidelines failed is that each side felt that they were
giving too much away. This was not a case of
publishers versus libraries; in fact, there were
publishers who supported the guidelines and
library associations who opposed them. The
chaotic and controversial nature of the CONFU
e-reserve negotiations is shown by a list of supporters and opponents.12 (Notice that the AAP
was one of the opponents of the proposal.)
permitted uses and the prices, but not
over what is or is not fair use. This
is why licensing matters. This is the
future. This is not to say that mentioning fair use in a license agreement is
unimportant. But, it is to say that it
probably will not affect the bottom line
and it should not affect the description
of permitted uses. It should be CLEAR
what users can do, and a statement
like, “fair uses are permitted,”
is NOT CLEAR. Go
for clear.13 [Emphasis in
original.]
One way of dealing with
the language of licensing
agreements is to use suggested language from groups
such as the International
Coalition of Library Consortia (ICOLC). 14 If the
license agreement allows
full access to students it can
alleviate the issue of e-reserves.
The most important detail is to ascertain whether the license allows a copy to be
loaded in the e-reserve system, or whether the
library needs to place a link to the database.
It is my hope that ALA and AAP will be
able to agree on a set of principles for e-reserves. I believe that the CONFU electronic
reserve proposal, despite never being adopted,
provide a fair and effective method of dealing
with the issue. The CONFU proposal should
SUPPORTERS
OPPONENTS
Association of American University Presses
(AAUP)
American Society of Composers, Authors &
Publishers (ASCAP)
American Association of Law Libraries
(AALL)
American Society of Journalists and Authors
American Council of Learned Societies
(ACLS)
American Society of Media Photographers
Indiana Partnership for Statewide Education
Working Group
Association of American Publishers (AAP)
Music Library Association (MLA)
Association of Research Libraries (ARL)
National Education Association (NEA)
Author’s Guild, Inc./Author’s Registry, Inc.
National School Boards Association
Recording Industry Association of America
(RIA)
Special Libraries Association (SLA)
Software Publishers Association
One way of dealing with this issue is to use
appropriate language in database licenses. As
more material becomes available electronically, these licenses will cover an increasingly
larger portion of our materials. By setting up
our license agreements properly, we can not
only avoid potential problems, but also create solutions to the e-reserve situation. For
example, Georgia Harper recommends:
Users describe what they want to do
with a copyright owner’s work, and the
copyright owner states a price for that
use. There may be negotiation over the
be the starting point for further negotiations.
I also believe that tightly-worded license
agreements, which are in the interest of both
publishers and libraries, can help to lessen the
uncertainly of ambiguous laws. Intellectual
property law may not have any hard-and-fast
rules, but licenses can create an agreed-upon
set of rules for both parties. In other words,
licensing, like cataloging and classification,
helps to create certainty from uncertainty and
order form disorder. And that’s what we need
to be doing for our library clients.
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Electronic Reserves ...
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Endnotes
1. 17 U.S.C. § 107 and 17 U.S.C.
§ 108.
2. For more on Fair Use balancing
and its First Amendment implications, see, Bryan M. Carson,
Chapter 4 “Fair Use and Intellectual
Property Rights,” The Law of Libraries and Archives. Lanham, MD:
Scarecrow Press, 2007.
3. House Report No. 94-1476, U.S.
House of Representatives (1976),
available at http://www.rbs2.com/
copyr2.htm.
4. For more information on the brevity requirement, see Chapter 4 of The
Law of Libraries and Archives.
5. Association of American Publishers, Frequently Asked Questions
about E-Reserves ( May 17, 2004).
Available at: http://www.publishers.
org/about/pdf/E-ReserveFAQ.doc.
6. Basic Books, Inc. v. Kinko’s
Graphics Corp., 758 F. Supp.
1522, 1991 U.S. Dist. LEXIS 3804,
Copy. L. Rep. (CCH) at 26709, 18
U.S.P.Q.2d (BNA) 1437 (S.D.N.Y.
1991).
7. Princeton University Press et al. v.
Michigan Document Services, Inc.,
99 F.3d 1381; 1996 U.S. App. LEXIS
29132; 1996 F.E.D. App. 0357P (6th
Cir.); 40 U.S.P.Q.2D (BNA) 1641;
Copy. L. Rep. (CCH) at 27,579 (6th
Cir. 1996).
8. National Information Infrastructure Task Force Working Group on
Intellectual Property Rights, Conference on Fair Use Final Report.
Available at: http://www.utsystem.
edu/ogc/intellectualproperty/confu.
htm.
9. Georgia Harper, “Fair-Use
Guidelines For Electronic Reserve
Systems,” Copyright Crash Course
( March 5, 1996). Available at:
http://www.utsystem.edu/ogc/intellectualproperty/rsrvguid.htm.
10. Id.
11. Kenneth D. Crews, “Electronic
Reserves and Fair Use: The Outer
Limits of CONFU,” Journal of the
American Society for Information
Science 50 (December 1999): 1343,
1344.
12. Id.
13. Georgia Harper, “CONFU: The
Conference on Fair Use,” Copyright
Crash Course ( March 5, 1996).
Available at: http://www.utsystem.
edu/ogc/intellectualproperty/confu.
htm.
14. The International Coalition
of Library Consortia (ICOLC),
Statement of Current Perspective
and Preferred Practices for the Selection and Purchase of Electronic
Information ( March 25, 1998).
Available at: http://www.library.yale.
edu/consortia/statement.html.
ATG Annual Survey Report
by Leah Hinds (Assistant Director, Charleston Conference; Phone: 864-353-1181)
<leah@katina.info> <leah_hinds@hotmail.com>
B
et you thought we’d forgotten the survey results this year! Delayed, but not
forgotten, here are your 2007 Annual
Survey results.
Against the Grain’s Annual Survey is designed to provide readers with library information
that is unavailable anywhere else. The survey
is an opportunity for readers to give opinions
and statistics concerning librarians and libraries
around the world. Participants submitted their
surveys either online, through the ATG Website,
or by sending a hardcopy through snail mail or fax.
The results were compiled from data submitted by
46 librarians, a number comparable to past years’
participation (48 in 2006, 49 in 2005).
Budgets, pricing increases and salary decreases
topped the list of five things you are most concerned about in the industry in the 21st century.
28.3% of respondents listed budget/pricing/salaries as their number one concern, followed by
archiving (8.7%), access to online non-textual
content collections, to tangible resources, or loss of
(8.7%), the future role of libraries and/or librarians
(6.5%), user’s ability to find information, focus on
user as researcher (6.5%), e-resource management
(4.3%) and technology/staying current (4.3%). Six
respondents did not answer this question (13%).
The remaining 19.8% had varying answers, such as
consistency in services provided, open access, and
mergers/acquisitions in vendors and publishers.
The number two concern was again topped
by budgets/funding issues (19.6%), followed by
e-resource management (8.7%), over-reliance
on eBooks/e-resources (6.5%), users ability to
serve needs, patron avoidance, staying customer
focused (6.5%), and open access (4.3%). 19.6%
of respondents did not answer this question. The
remaining 35.2% had varying answers such as
licensing, dark archives, and the decreasing supply of librarians.
Concern numbers three through five were
much more spread across the board, with fewer
duplicate answers. Again, topping these lists,
were budgets/funding/pricing issues, followed by
staff training/library education, library relevance,
information literacy and mergers/acquisitions in
publishers and vendors.
Last year, concerns were topped by 1) budget
and pricing issues, followed by 2) digital preservation, 3) search technology competition, 4) loss
of experienced personnel and 5) the future role
of the library.
Has your library bought eBooks? 67.4% of
you have, 6.5% haven’t, and 23.9% didn’t answer.
For those who do purchase eBooks, the average
budget allocation is $58,800. 45.5% of eBook purchasers said that their budget varies, so they
couldn’t
respond with a set dollar amount, and 54.5% didn’t
answer the question. Compared to the previous
year’s results, there is a marked decrease since
85% reported purchasing eBooks. Interestingly,
even though fewer people reported buying, the
budget allocation has gone way up. The dollar
amount was an average of just over $14,000 last
year!
What functions has your library been outsourcing? 30.4% outsource your catalogs, approval plans are outsourced by 32.6%, and 26.1%
outsource other items (such as binding, physical
processing, and ERMS). No one answered that
they outsource their acquisitions, and 15.4% didn’t
answer the question. These results are comparable
to last year’s, with approval plans at 38%, cataloging at 27%, and acquisitions at 4%.
Has your technical services operation been
downsized in the past two years? 32.6% said
yes, 34.8% no, and 32.6% had no answer. Of
those who have been downsized, 15.2% have
experienced a professional staff decrease, 17.4%
have seen a decrease in para-professional staff,
4.3% have seen teams implementation, 6.5% have
been merged with cataloging, and none have seen
a merge with ILL. The remaining 8.7% answered
“Other” with responses ranging from a decrease
in student worker hours to the dissolution of a
department head position. There was a significant change from previous years’ results here: in
2006 56% were not downsized, and in 2005 that
category included 60% of respondents. The effects
of the downsizing, however, remain similar. Last
year, 17% reported a professional staff decrease,
25% saw a para-professional staff decrease, 2%
used teams implementation, and 15% reported
merges with cataloging.
The effects of being downsized were split
fairly evenly. 43.8% believe the effects have
been positive, with comments such as “Greatly
increased turnaround time from order to shelf.
Higher profile for acq staff.” and “While we have
not been downsized, we have conducted extensive
cross-training with improvements in efficiency
and consistent acquisition practices.” 56.3% say
they’ve seen negative effects, with comments like
“Increased backlog” and “Many things have been
falling through the cracks.”
Now for the budget section! Since they have
consistently been first and foremost on the list
of concerns, we have a substantial section of the
survey devoted to budget issues.
In the past year, has your total materials
budget increased or decreased? 50% of respondents reported an increase, 10.9% reported
a decrease, and 39.1% did not answer. The average percentage of increase was 8.2,
and average decrease was 5.75%
overall.
In the past year, has your materials budget for books increased
or decreased? 30.4% saw
an increase, 28.3% saw a
decrease, and 41.3% did not
continued on page 36
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