Faculty wishing to place copyrighted material on " reserve," face challenging questions about copyright. This document is meant to inform faculty and staff of current copyright guidelines and "fair use" exemptions of those guidelines applicable to classroom copying and libraries.

The Fair Use provision of the Copyright Act allows reproduction and other uses of copyrighted works under certain conditions for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research. Additional provisions of the law allow uses specifically permitted by Congress to further educational and library activities. The preservation and continuation of these balanced rights in an electronic environment as well as in traditional formats are essential to the free flow of information and to the development of an information infrastructure that serves the public interest.

If an instructor is not the copyright owner of a work, he or she may only place the material on reserve if:

1. the copyright owner (not necessarily the author) grants permission, or
2. the use is a "fair use" under the law (described below), or
3. the work is in the public domain (copyright has expired or work of US Government, for example).

FAIR USE

"Fair use is a legal doctrine that allows the public to make limited uses of copyrighted works without permission." (Crews, Electronic Reserves and Copyright at IUPUI)

"The rights of copyright owners are limited by a number of exceptions known as fair use doctrine. The doctrine has been established by over two hundred years of judicial decisions and its main points have been written into the federal copyright statute. Although the doctrine legitimizes certain circumstances of copying that serve the public good such as for educational purposes, fair use is often misunderstood as a formalized set of rules that educators and students can rely upon with certainty. It is important to know that:

1. there are no precise rules, only "guidelines";
2. "fair use" is an affirmative defense, which means that an accused defendant must assert it, bring forth evidence that use was fair, and bear the burden of persuasion in court;
3. Congress made it clear that it never intended to provide a specific general exemption for educational uses;
4. The factors that comprise fair use are all to be considered by a court, without any pre-established relative weight and with no single factor being determinative."

FOUR FACTORS OF FAIR USE

There are four factors the courts will use to establish "fair use" of a copyrighted material:

1. The purpose and character of the use. E.g. commercial or nonprofit educational.
2. The nature of the copywrited work. E.g. Fiction or factual, published or unpublished.
3. The amount and substantiality of the work used. Infringement occurs even when a small percentage of the work has been copied if that portion comprises the heart of the work.
4. The effect of the use on the value of or market for the original work.

"Although, as stated, there is no statutorily required weighting, analysis of court opinions generally show that the fourth factor is most significant, the first factor is very important, and the third factor is least important. In light of this, copying in an educational setting of material intended by its author or publisher to be sold to an educational market is usually not going to be considered fair use."

ELECTRONIC RESERVES

1. SCOPE OF MATERIAL

1. In accordance with fair use (Section 107 of the U.S. Copyright Act), electronic reserve systems may include copyrighted materials at the request of a course instructor.
2. Electronic reserve systems may include 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. "Longer items" may include articles, 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. "Short items" may include articles, chapters, poems, and other works of a customary length and structure as to be a small part of a book, journal, or other work, even if that work may be marketed individually.
3. Electronic reserve systems should not include any material unless the instructor, the library, or another unit of the educational institution possesses a lawfully obtained copy.
4. The total amount of material included in electronic reserve systems for a specific course as a matter of fair use should be a small proportion of the total assigned reading for a particular course.

2. NOTICES AND ATTRIBUTIONS

1. On a preliminary or introductory screen, electronic reserve systems should display a notice, consistent with the notice described in Section 108(f)(1) of the Copyright Act. The notice should include additional language cautioning against further electronic distribution of the digital work.
2. If a notice of copyright appears on the copy of a work that is included in an electronic reserve system, the following statement shall appear at some place where users will likely see it in connection with access to the particular work:
3. "The work from which this copy is made includes this notice: [restate the elements of the statutory copyright notice: e.g., Copyright 1996, XXX Corp.]"
4. Materials included in electronic reserve systems should include appropriate citations or attributions to their sources.

3. ACCESS AND USE

1. Electronic reserve systems should be structured to limit access to students registered in the course for which the items have been placed on reserve, and to instructors and staff responsible for the course or the electronic system.
2. The appropriate methods for limiting access will depend on available technology. Solely to suggest and not to prescribe options for implementation, possible methods for limiting access may include one or more of the following or other appropriate methods:

1. individual password controls or verification of a student's registration status; or
2. password system for each class; or
3. retrieval of works by course number or instructor name, but not by author or title of the work; or
4. access limited to workstations that are ordinarily used by, or are accessible to, only enrolled students or appropriate staff or faculty.

3. Students should not be charged specifically or directly for access to electronic reserve systems.

4. STORAGE AND REUSE

1. Permission from the copyright holder is required if the item is to be reused in a subsequent academic term for the same course offered by the same instructor, or if the item is a standard assigned or optional reading for an individual course taught in multiple sections by many instructors.
2. Material may be retained in electronic form while permission is being sought or until the next academic term in which the material might be used, but in no event for more than three calendar years, including the year in which the materials are last used.
3. Short-term access to materials included on electronic reserve systems in previous academic terms may be provided to students who have not completed the course.

Other Restrictions.

The following uses of photocopied material are restricted from placement on Reserve without copyright permission:

1. Entire photocopied books cannot be placed on Reserve without written permission from the copyright holder
2. The same instructor without permission from the copyright holder cannot use photocopies of the same items from term to term.
3. Photocopies of such things as workbooks, exercises, standardized tests and like material cannot be placed on Reserve.
4. Course packets of copyrighted articles are considered anthologies and, as such, cannot be placed on the Reserve without written permission from the copyright holder.
5. Access to Electronic Reserves is limited to the college community, which is comprised of students, faculty, and staff. At the end of each semester, all material in Electronic Reserves will be deleted from the database