February 14, 1997
Over the past two years and in the context of the Conference on Fair Use (CONFU), the Association of Research Libraries (ARL) has worked with other CONFU participants to develop consensus among rightsholders and users of copyrighted works for fair use rights for libraries and educational organizations in the networked environment. Electronic reserves was one of the areas identified for the development of CONFU guidelines. ARL actively participated in CONFU believing that the process would capture for the digital environment the carefully constructed balance that has been achieved and maintained in the print environment. This fact sheet summarizes the concerns of ARL that resulted in the rejection of the electronic reserve guidelines.
While some CONFU participants support a March 5, 1996 draft of the electronic reserve guidelines as practical guidance for one possible model for the digital future, ARL believes that the document appears to narrow the fair use rights of teachers, librarians, and student users of copyrighted materials by proposing a maximum limit rather than a minimum threshold.
Comments from the ARL membership were solicited on several early drafts developed by the CONFU Working Group, beginning with a membership-wide call for comment in July 1995. That review first identified the following key concerns:
access restricted to students registered in the class
(e.g., narrowing current access that serves all students in the institution)
very restrictive technological limits on access to materials
(e.g., limiting access from dedicated workstations in the library)
strict limitations on the proportion of course materials included
(e.g., not all course materials assigned for reserve could be included)
strict limitations on the type of material
(e.g., supplemental readings only, required readings could not be included)
electronic access limited to one term
(e.g., permission required for reuse)
These concerns, along with others identified by other CONFU participants, including serious reservations by the publisher representatives, were sent to the Electronic Reserves Working Group for consideration. Compromises were developed and discussed but ultimately the Working Group reached an impasse at the end of 1995. Subsequent efforts in 1996 by a small group representing the scholarly and academic community also failed to reach consensus. Also during the year, two major publisher groups formally rejected the guidelines (Association of American Publishers and Software Publishers Association).
In each set of deliberations, the concerns about how the guidelines narrow fair use were not, in the view of ARL, satisfactorily resolved. This process, along with a message from the commercial publishing community that adherence to the practices proposed in the document would be no assurance against infringement litigation, led to ARL's decision in October 1996 to reject the guidelines.
At the November 25, 1996 plenary session of the Conference on Fair Use, participants concluded that there was insufficient support for the March 5, 1996 draft. CONFU participants agreed that the March draft would not be submitted for consideration as a proposal for CONFU fair use guidelines or included in the final CONFU report.
Prepared for ARL by
Mary E. Jackson
ARL Access & Delivery Services Consultant