Down with E-Reserves

A little over a year ago, press releases from the Association of American Publishers (AAP) and Cornell University touted the release of new “jointly drafted” copyright guidelines to govern what has become a tense subject: the use of electronic course reserves, or e-reserves. Since the mid-1990s, e-reserves have offered libraries and academic institutions the promise of easier, more efficient, and more cost-effective access to and management of their course content. For publishers, however, the practice has come to represent something of a copyright nightmare, tantamount, they've claimed, to the creation of illegal “electronic course-packs” in some cases.

Rather unexpectedly, after close to two decades of what has been a bitter, fractious disagreement, in September 2006, AAP president Pat Schroeder heaped praise on Cornell for taking “a leadership role” on the issue. Association of American University Presses executive director Peter Givler chimed in, calling the guidelines “a wonderful example of what can be accomplished when people who disagree agree to listen to each other and talk it out.” Finally, peace, love, and understanding, right?

Not so fast. Soon after the guidelines appeared, it was disclosed that Cornell had, in fact, agreed to “talk it out” under the specter of a copyright infringement lawsuit—so much for that warm, fuzzy feeling.

While AAP touted the “joint” guidelines as a model for others and something of a breakthrough moment in e-reserve history, the threat of litigation behind that model seemed to speak more loudly to librarians and university officials. Today e-reserves remain a thorny subject nationwide. Ironically, since the Cornell/AAP effort, discussion of specific e-reserve practices seems to have been driven underground rather than into the open, somewhat to the bemusement of publishers.

“Frankly, one of the things that's been something of a puzzle to us is why we haven't seen more people agree that the Cornell guidelines are fairly feasible,” AAP VP for legal and governmental affairs Allan Adler tells LJ. “I don't see anything in them that would be viewed as controversial or overly restrictive.”

Simply put, the Cornell guidelines merely state what Adler says should be obvious: that practices and uses that require permission in print under the fair use provisions of the copyright act require permission in the electronic realm as well. “We see that as black letter law in the United States,” Adler says. “As I've said to people, explain to us how this doesn't reflect a common understanding?” Of course, copyright experts are quick to note that, when exercising fair use, the foundation of e-reserves, there is hardly ever a case of black letter law. And when such discussions occur accompanied by potential charges of infringement, the wagons circle.

“AAP likes to emphasize people accepting the Cornell template, but universities and libraries are just so different,” says Georgia Harper, scholarly communications advisor for the University of Texas (UT) at Austin's University Libraries. “One-size-fits-all is a problem.”

Harper agrees that the litigious atmosphere surrounding e-reserves hasn't exactly fostered a feeling of trust between libraries and publishers. “I do think the AAP has polarized the discussion further than ever,” she says, adding that, for lack of a better term, a sort of bunker mentality has emerged around the subject of e-reserves. “There's offense and defense,” Harper says. “They're on offense. If you don't play defense, you get run over.”

Adler admits there is a perception of “arm-twisting” out there ever since the AAP engaged in some rather high-profile wrangling over e-reserves with the University of California–San Diego (UCSD) in 2005. “Our dialog with the University of California spawned a public image that we were threatening them with a lawsuit. We never did,” Adler says flatly.

UC officials, however, weren't so sure. UC lawyers explained to LJ that AAP had alleged copyright infringement, and “when you allege infringement, you always raise the possibility of a lawsuit.” UC library administrators also hit back at AAP, saying in a statement that it was “unclear” to them whether publishers would “file a lawsuit against the university, simply use the available information as a springboard to heighten the legal issues around electronic reserves and possibly create a chilling effect, or pursue both avenues.”

A lawsuit against UC never did materialize, and UC maintains its e-reserves do not and did not violate copyright law. However, because UC is a state institution and copyright is federal law, some speculate that sovereign immunity played a major role in how far AAP was willing to take its efforts since it could not have collected damages from the university.

Such was not the case with Cornell, however, a private institution. “It should suffice to say,” Adler says, when asked about Cornell, “that we made them understand this was a serious issue,” although an issue, he adds, AAP preferred to, and did, resolve cooperatively.

Adler says AAP currently is “in discussions” with other institutions, details of which are confidential. One can assume, however, a threat of litigation for those schools also looms. “We have to get the attention of these institutions in a serious way,” Adler explains, though also noting that publishers have not been “active in litigating copyright issues like the music, movie, or software industries.” On one hand, that suggests lawsuits over e-reserves are not about to come flying out of AAP briefcases. On the other hand, he warns, institutions should not believe that means “they don't really have to pay attention.”

Generally, e-reserves have come to represent digital course content mounted on secure, fire-walled servers, usually administered by the library. Interpretations differ widely as to what protections are or should be required. Meanwhile with each new tech-savvy generation, a central question looms ever larger: Exactly what are e-reserves?

“Since our AAP agreement, we don't even have separate e-reserve policies any more,” explains Peter Hirtle, intellectual property officer for the Cornell University Library. “We have electronic course content copyright guidelines.” That change, he says, reflects the recognition that “electronic course content” can reside in a system managed by the library, or in the Blackboard course management system, or on an entirely separate system maintained by the faculty, including personal web sites.

“It's an excellent question,” UT's Harper says, adding that e-reserves now can encompass a full range of course reading, everything from “just a fraction of supplemental course readings to 100 percent of the assigned reading,” differing from library to library, from school to school, teacher to teacher, and even class to class.

E-reserves can involve everything from journal articles and book chapters to multimedia clips. Sometimes e-reserves are taken from licensed electronic databases or ebooks, sometimes they are scans created from print resources, and sometimes they are links to content on the open web. Usually, e-reserves are made accessible only to students in the class for which they are assigned and are password protected—but not always, and educators disagree, as do lawyers, whether such protective measures are required or efficient.

One thing that is not disputed: e-reserves in whatever system are immensely popular. Students and instructors love the convenience, ease of use, and accessibility. Every semester they fit more and more with the way we teach and learn, and they facilitate innovations like distance learning. Additionally, the price is right for students already strapped by the high cost of textbooks, and for libraries with budgets that are stretched every year.

Publishers, obviously, are considerably less enthused. They note that e-reserves essentially enable libraries to make one copy of a resource to be viewed—and in some cases printed, shared, and reused—by many, potentially creating a number of what they consider to be unauthorized copies.

Libraries and university administrations clearly acknowledge and attempt to mitigate such potential for abuse. For example, according to its web sites, Wayne State University, Detroit, limits faculty to placing 12 articles per class per semester on e-reserves. The University of Northern Iowa limits e-reserves to 25 titles for one course. Many library policies dictate that e-reserve readings must be removed after each semester and that use in consecutive semesters requires permission (also part of the Cornell guidelines).

Because e-reserves rely on fair use provisions in U.S. copyright law, however—provisions that are interpreted in vastly different ways—policies and guidelines for implementation vary. At the University of Florida, the library says on its web site it will clear permission for e-reserves but will scan and make reserves available while permission is being sought. If permission is denied or the price for use too high, the reading is removed. Many campuses state that faculty are solely responsible for determining whether their selections fall under fair use. This is where the real fun begins.

“The problem is the culture at higher education institutions,” Adler asserts. “Almost everything involving faculty or students seems to be protected under some overwhelming notion of academic freedom. Many people think that they shouldn't be subject to any kind of restrictions or limitations on how they use course content and particularly in electronic form,” he says. “We've learned that universities are extremely defensive but on [the] somewhat hazy ground of academic freedom rather than actual principles of established copyright law.”

In practice, publishers bemoan the lack of transparency in e-reserves, an atmosphere on campuses that won't involve publishers until, well, a potential lawsuit hangs in the balance. In the UCSD matter, AAP obtained “a small percentage” of e-reserve material from a “confidential source.” UCSD officials say AAP then “proposed as a solution that faculty post on a publicly accessible web site at the beginning of each term a listing of course reserves, indicating the title, author, and the amount of material placed on reserves.” UC rejected that suggestion, saying it would be unworkable and unprecedented for a university to act as a copyright enforcement agent for the publishing industry.

As AAP has turned the heat up on e-reserves, some in the library profession have questioned whether more leadership is needed to fill an expanding void. Being too restrictive can impinge on the educational mission allowed by law, while being too aggressive can lead to a potential lawsuit.

“The law says multiple copies for classroom use,” notes critically acclaimed copyright expert and author Siva Vaidhyanathan, a professor of media studies and law at the University of Virginia. He acknowledges, however, that, in the face of potentially expensive infringement lawsuit, no administration is eager to test that language in court.

“Within the university community there really is no call to stand up,” Harper says. Indeed, in researching this article, it's clear many wish to keep their heads down. “There is no call to defend principle at great expense. To call for 'leadership' on this is asking exactly that, to stand up for a principle we may well believe in but at great cost and with the potential of losing and making it really hard on everyone,” she adds.

Multiple copies for classroom use is, in fact, in the statute, Harper agrees. But, she adds, subsequent case law has all but written that principle out. “As a principle, as something we should fight for, I wholeheartedly agree,” she says. “But as a general counsel of a university, the mission is to advise your client of the reality of the risks, and it's not looking good for that principle.”

Some libraries and universities are choosing to exercise leadership in other ways, by using e-reserves to kick up discourse on scholarly communication. After their tango with AAP, UC officials told faculty the e-reserve issue was “yet another manifestation of the crisis in scholarly communication,” suggesting that alternative models of scholarly publishing could be a solution, albeit not an immediate one, to the e-reserve problem.

“That's been one plus here,” says Cornell's Hirtle. “Interest in open access, in retaining copyright, in licensing things under Creative Commons licenses on the part of the faculty, has increased dramatically since this matter came up. It's still not widespread. But certainly the threat of a potential lawsuit has made some faculty members much more aware of what they are giving away and some of them are hesitant to do so.”

For now, in today's world, managing e-reserves is about managing risk. In that vein, leaving the determination of fair use in e-reserves to faculty, Harper says, is the least desirable option. “If you're looking to minimize risk at an institution, leaving [fair use determinations] in the hands of, in UT's case, 2000 individuals is simply not realistic,” she says. At the same time, what works for a large school like UT might not work for a small liberal arts college. E-reserves are an institutional issue, she suggests, rather than simply a library or faculty—or even a national—issue.

For their part, publishers have acknowledged they are in a rather uncomfortable position: they, too, rely on fair use and higher education. They certainly don't relish the idea of threatening to sue their authors, potential authors, allies, or their best customers. Universities and libraries, meanwhile, in addition to being customers are historically active partners both in educating users about copyright and enforcing it. When it comes to fair use and e-reserves, that may be about as close as the two sides can come. And as long as current discussions happen in the context of potential litigation, universities will necessarily seek to limit exposure, and discussion of e-reserves will remain tense.

AAP's Adler insists publishers' efforts aren't aimed at imposing a “strict regime with quantitative parameters” on what can be used in e-reserves. “That's not what this is about,” he says. “We're looking on a much more general level, making sure everyone is operating on the same page regarding the general principles of copyright law.” He acknowledges, however, that there is no “talismanic articulation of guidelines” out there. But can't there be a “meeting of minds”?

Seeking consensus on general principles of fair use, meanwhile, does little for colleges and universities struggling with practical issues, Harper suggests. “Slapping a policy on your web site is the tip of the iceberg,” she says. “Implementation is the real challenge. We don't need a one-size-fits-all solution. We do need a more realistic sense of where to draw the line, because, right now, it can be justified to draw it just about anywhere.”