11 Course Reserves

Desired Result

A course reserves clause identifies specific terms around use of the licensed content in course reserve systems.  Generally, all authorized users are entitled (at a bare minimum) to read all the licensed material and library reserves serve only to make the content more readily findable and available for students in a particular course. Course reserves terms should allow faculty and instructors to share readings with their students in formats and systems that are useful, efficient, and meet the learning needs of the class.

An explicit clause about course reserves is arguably not strictly necessary, depending on the other authorized use terms you have negotiated, but is still generally desirable for clarity between the parties.  After all, all of the individuals who have access to the licensed content made available through a standard ereserves system – generally students, faculty, and administrative staff affiliated with a specific course – are Authorized Users under the license, and are entitled to access, read, and use the content.  Many publishers, however, object to the licensed content being made available through systems that they do not directly control.^[1]  Since most ereserves systems require instructors or staff to upload content into a separate course reserves system, this can sometimes conflict with other terms of the license unless course reserves use is specified.

Essentials of the Law

In the United States, scanning of physical materials for course reserves usually relies solely on fair use. Indeed, “multiple copies for classroom use” is specifically identified as an example of fair use in 17 USC 107.  While a robust fair use savings clause may therefore cover most of what is needed for course reserves, a specific clause may have advantages. The fair use of course reserves was put to the test when, in 2008, three academic publishers sued George State University for copyright infringement based on their ereserves system,^[2] which involved scanning class readings requested by the instructor and making them available to registered students during the semester of the course.^[3] GSU defended on the basis of fair use and prevailed on 48 of the 58 works at issue in the case, but the 11th Circuit opinion(s) in the case required a “holistic, qualitative, and individual” analysis of each  reading,^[4] which can be a difficult standard to apply to an ereserves program at scale.  A clear statement on course reserves in the agreement can simplify and standardize ereserves processes and expectations.

Desired Language

Course Reserves. Licensee and Authorized Users may use the Licensed Materials for print and electronic reserves in connection with specific courses of instruction offered by Licensee.^[5]

Tricks and Traps

The model language presented above has the advantage of being very straightforward; it simply clarifies that the licensed content can be used for course reserves.  This is a good approach because it makes the rights clear without it limiting you to a specific method or procedure for providing course reserves.  Since a course reserves program will generally need to use content from many publishers, spanning many eresource licenses, too much detail in the course reserves clause can lead to an additional burden on ereserves staff who would then need to incorporate lookup and interpretation of different vendors’ terms into their processes.  Flexible terms that can accommodate existing and updating ereserves practices can have a real impact on workflow in this case.  It is also important to have a good understanding of the ereserves practices at your institution, so that if more restrictive compromises are negotiated, you can be confident that they match your institution’s needs.

Restrictions to be wary of include limitations on the type or quantity of content that can be used for course reserves.  Many course reserves clauses will include a quantity limitation, such as “may use a reasonable portion of the Licensed Materials” for reserves, or a more specific limit such as “individual articles or book chapters.”  Some quantity limitation on course reserves may be reasonable if it fits within your institution’s standard practices, and “reasonable portion” is usually flexible enough to be acceptable.  Since all authorized users are entitled to read the content, however, restrictions on the methods and amount of use in course reserves should be minimized.

Other restrictions that you may encounter include attempts to limit reserves copies to linking to the content via the publisher’s discovery interface.  This is a valid strategy if all else fails in negotiating a course reserves clause, and, in fact, this generally will always be available as a fallback position whether or not it is specifically stated. This is less desirable in negotiating the clause, however, because it does not match well with the actual practice of ereserves in many cases.  If, for example, readings are routinely loaded into the course management system at your university by people outside of the library (usually faculty or administrative staff), it may be difficult to communicate and implement this approach.  At best it adds a lookup step to the workflow, and multiplied over different vendor requirements it can get complicated very quickly.

Related clauses: Course Packs

Similar clauses can be added, as necessary, for other common use cases at your institution.  A common example of this is use of licensed content in course packs.  Course packs, as distinguished from reserves, are compilations, usually in print format, of the assigned readings for a course, and are frequently prepared by the campus bookstore and sold to students.  Historically, course packs developed in parallel to course reserves, and a series of cases in the 1990s indicated that print-format course packs sold by for-profit copy shops were generally not covered by fair use.^[6] Although there have been no cases about whether and how this conclusion applies to non-profit institutions, many campus bookstores or copy shops will separately license copyright for course pack purposes.  A library subscription, however, can and arguably should cover non-profit creation of course packs, for the same reasons it covers course reserves: the library contract is a license for students at the school to have access to the content for their education.  A simple clause to reflect this in the license is:

Coursepacks. Licensee and Authorized Users may use a reasonable portion of the Licensed Materials in the preparation of coursepacks or other educational materials.^[7]

Importance and Risk

Generally it is a good idea to have a simple clause around course reserves, and this clause is usually not controversial with academic publishers.  Similar clauses for coursepacks should be considered if coursepacks are used at your institution.  These are clauses, however, that can be omitted (without foregoing the right to have ereserves), depending on the rest of the license terms.  A license that is silent on these topics but has a fair use savings clause and a clear scholarly sharing clause, for example, would allow for most standard ereserves practices, and may cover at least some coursepacks.  Course reserves and course packs clauses should all be tailored to the needs and practices of your institution.