From: Kevin Smith <[log in to unmask]>
Date: Fri, 6 Sep 2013 01:02:42 +0000

This comment is nonsense of the most breathtaking proportion.  The ARL
Code says no such thing, of course.  And the source of this grotesque
misreading is apparently Sandy's continued inability to think about fair
use in anything but the most absolutist terms, with complete disregard for
distinctions or differences in circumstances.

First, the Code does not insist on anything.  It is, as it clearly says,
an attempt to articulate a consensus in the library community about
practices that can be (not must be) fair use in common situations.  Its
structure of principles, limitations and enhancements is designed to guide
thinking about what may or may not be fair use, and to suggest ways in
which the circumstances of a particular use can be adjusted to improve the
case for fair use. Far from insisting that any particular activity is
always fair use, the Code says that "With this information in hand, each
institution can undertake its own legal and risk analysis in light of its
own specific facts and circumstances" (p.2).

Principle One in the Code, the only one of the eight principles that deals
with e-reserves, does make a case that this use can be considered
transformative.  As we know from the Georgia State decision,this
conclusion is not absolutely necessary for a finding of fair use for
e-reserves.  But regardless of what one thinks about transformation in
this context, the Code never says that indiscriminate digitization of
entire monographs or novels *is* fair use.  Instead, it argues that the
amount used in particular circumstances should be tailored to the
pedagogical need (something the courts and Congress have also said), and
that in some cases an entire work might be used fairly.  The example given
in the Code is very different from Sandy's fevered imaginings -- "an
illustrative song in a class on the history of popular music" (p.13).
But, again, Sandy is lumping everything in the Code together to create a
unpalatable witch's brew that makes the Code look outrageous and tries to
make us afraid of it.  And, as he done throughout this discussion, he
ignores the fact-specific nature of fair use.

What Principle One actually says is that "It is fair use to make
appropriately tailored course related content available to enrolled
students via digital networks."  Note the words "appropriately tailored,"
which are discussed both before and after the principle is stated, but
ignored by Sandy.  One thing the authors of the Code are adamant about is
that the principles must be read together with the limitations.  In this
case, Principle One is followed by this limitation (among others):
"Materials should be made available only when, and only to the extent
that, there is a clear articulable nexus between the instructor's
pedagogical purpose and the kind and amount of content involved" (p.14).

So no, Sandy, it is not common for librarians to put entire works on
electronic reserve.  We are much more responsible than that -- more
thoughtful and more driven by the needs of good teaching and scholarship
than by some radical ideology you impute to us -- and the ARL Code both
reflects and encourages that responsibility.

Kevin

Kevin L. Smith, M.L.S., J.D.
Director of Copyright and Scholarly Communications
Duke University Libraries
Durham, NC 27708
[log in to unmask]


On 9/5/13 6:04 PM, "LIBLICENSE" <[log in to unmask]> wrote:

>From: Sandy Thatcher <[log in to unmask]>
>Date: Wed, 4 Sep 2013 23:14:15 -0500
>
>I'm wondering how "common" it is for libraries to digitize and make
>available for e-reserves entire monographs, novels, and other works
>whose intended audience, according to the ARL Code, are not students
>in the first instance and whose use for classroom instruction is
>therefore a different "purpose" and hence "transformative"--because
>that is exactly what the ARL Code insists can be considered fair use.
>
>Sandy Thatcher