In a packed forum last Tuesday, TwTT set out to explore not only the user-friendly process of creating e-reserves, but also the uncharted waters of relevant copyright law. With expert panel members Brad Warren, head of Sterling and Bass Library access services; Craig Kirkland, Bass reserves manager; and Christina Mulligan from the Yale Law School’s information society project, the advantages and limits of e-reserves were mapped out.
Brad opened the discussion with an introduction to the concept of e-reserves. Based on a premise similar to a print reserve, an e-reserve allows instructors to select portions of books and articles to be scanned and hosted for student access. Access is limited to those enrolled in the relevant course and also expires at the end of the semester. The convenience of the system has made it very popular among students and faculty, and e-reserves have been adopted not only by the Yale College and Graduate School, but also by all of the professional schools.
Craig explained the front end of the Bass e-reserve system, where a professor simply contacts reserve staff 
requesting that a course texts be made available to students and submits a syllabus, starting the process. The library will then locate the texts, scan them if necessary, and create PDF files which are uploaded to a secure server. Staff then embeds hyperlinks to the securely stored material into the syllabus and returns it to the professor to be posted on the Classes*V2 course management system. Students enrolled in the course can click on the links in the syllabus to be taken to the server where a netID login is used to validate identity prior to downloading the material. In the current system text recognition, or OCR, is not automatically performed on scans, meaning that they are neither searchable nor machine readable, but if a professor requests this functionality it can be easily added. At the moment there is no system available to convert scanned work to formats accessible via electronic readers like the kindle or nook, but the possibility is being explored for future iterations of the e-reserve system.
In fact, if there is one constant in the Yale e-reserve service it is change. Brad mentions that after its start in the Yale Medical School five years ago there have been three major changes in the service as well as expansion to the rest of Yale’s schools and the college. The copyright law on which the service rests is also constantly shifting. In the latest development, a group of publishers is suing four administrators of Georgia State University to change the way that campus implements its e-reserve policy. Fair use is a doctrine that exempts parties from acquiring permission from (and paying royalties to) copyright holders in certain limited contexts, including “research,” “scholarship,” and “teaching and multiple copies for classroom use.” The publishers argue that Georgia State’s system of production and distribution of e-reserve materials exceeds the fair use exemption while the university argues that the program is protected. Since Georgia State is a public university protected by state sovereign immunity there are no financial incentives for the suit, rather it seems that the publishers are seeking to establish a favorable precedent – something conspicuously absent in present jurisprudence.
With the dearth of litigation in the world of e-reserves and electronic course media, and there is a significant amount of misinformation and confusion that surrounds the myriad unusual situations that can emerge. When there is a case being made for more conservative interpretation of fair use guidelines it is frequently legislative history that is invoked. While this may suggest how a law could be interpreted, Christina reminded us that this history is not law itself, and courts have often completely ignored this material when making decisions. The Digital Millennium Copyright Act, or DMCA, is also frequently mentioned, but does not actually apply to most situations since there is no copy protection system (or DRM) built into most of the electronic text being distributed. Instead what applies is a tricky system of balancing publishers’ rights with the academic mission of educators and universities, and the ultimate test will often be how rigorously fair use can be demonstrated.
An example of a situation where fair use is ambiguous is in the re-posting of documents made available elsewhere on the internet. While liability can be avoided completely by linking directly to the third party, in practice an educator may wish not to risk material availability to the vagaries of the internet and to make a copy locally available. Although there is an implicit safety associated with using a document that is already freely available, the truth is that the liability claims have not been vetted in court yet, and the poster would be taking a slight risk, although a negative outcome is very unlikely. If the educator were to comment or modify the material in some way as to make its use for teaching more clear, the risk becomes negligible. Annotating cannot be considered a fail safe way to demonstrate fair use, however, particularly if the copyright holder is in the process of releasing their own annotated edition. Nonetheless, the overall theme is that the closer a work is to being replicated for “scholarship,” the safer it is to release it to a closed group.
Without clear legal guidelines it is difficult to determine who is and who is not liable to being sued for copyright infringement – in fact, there are so many ambiguities that almost anyone who posts copyrighted material electronically is liable to some extent. This should not, however, discourage academics from using e-reserve or posting material for course use. Most potential violations are so minor that publishers would be unwilling to take the risk of annoying a judge and establishing a more generous fair use precedent than they would like. Similarly, current interpretations hinge on every transfer of an electronic file being considered a “copy” – even streaming editions which reside in RAM for a short period of time. A revision of this practice with either changes in technology or interpretation could have major effects on copyright law compliance in academia.
One of the most important, and most frequently overlooked, solutions to the e-reserve copyright quagmire is for scholars to be more proactive about retaining the copyright for materials they produce – something often signed away unwittingly during the publication process. This would allow academics to keep more control over their work, and would make permission seeking easier, reducing the need to seek fair use exemptions.
Until the copyright question is resolved more completely there is a minor risk associated with the electronic distribution of copyrighted materials – small enough for Yale’s general counsel to approve the e-reserves process. There is also work among university libraries to establish general guidelines for e-reserves which are projected for release in 2012. This is in addition to the other guidelines available in the public sphere, including the ALA’s found here. Ultimately, the law is written to ensure that materials are used, and Christina summarizes the current state well in her closing statement: “Hard cases are when something is easily available to licence […] and you’re choosing not to, but the biggest thing I would urge is that when there’s something you don’t know how to clear, and you can’t figure out how to get it, or there’s some way you want to present it that you can’t get clearance for, that’s the […] real fair use stuff that you shouldn’t hesitate [about], because if it inhibits your ability to teach, or students’ ability to learn, then those are the best facts for fair use cases. The one kind of take-away is don’t let the law stop you from doing something that is important to the teaching experience because you’re very unlikely to get sued, especially when you’re in this teaching context.”
