April 15, 2008 @ 17:04pm
One of our programs uses a problem-based curriculum (PBL). The students are in small groups of 6-7 and will research a problem, emailing articles or scanned book chapters to the other students in the group. Sometimes they will email this material to the entire class of 100 students. I think this violates "fair use." Am I correct, or is this an extremely conservative approach.
April 15, 2008 @ 17:04pm
I believe that the average approach is too conservative. I believe that the NYU out of court settlement and decades of misinformation have skewed the entire spectrum. Of course, almost everyone disagrees with me. If the majority of people agreed with me, they would shift the spectrum back towards me.
I think the majority would say that you are correct or perhaps slightly conservative.
Personally, I believe that your approach to the 6-7 students is extremely conservative. I could go either way with the 100. It depends on the details.
The critical question for me is the following: "What would happen if the students could not share the articles/chapter?"
Here's a hypothetical answer: Student 1 goes to the school library, finds the article and writes down the title. Student 1 tells Students 2-7 the title. Students 2-7 go to the library and find the article.
If that is a possible answer, then no sales are lost. No market effect. 1st and 4th factors are in your favor. 2nd factor is possibly in your favor. That's fair use in my opinion.
Here's the difference between my approach and the standard approach. Most people ask "Can you pay for it?" I ask "What is the true probability that you would pay for it?"
April 15, 2008 @ 17:04pm
I should clarify my original statement. I have told the students that in the small groups it would be "fair use" but not necessarily to the whole entire class of 100. With PBL, one of the main points is the self-learning and sharing of information. The students feel if they can't share the articles, it negates the whole point of PBL curriculum.
April 15, 2008 @ 17:04pm
Multiple copies for classroom use are specifically allowed, so I'm not sure that fair use needs to come into this at all. I don't know of anything that says how many "multiple" refers to, as long as they're students in a specific class. Having said that, I would be a lot more comfortable if the copies were either paper or within a secured course environment that complied with TEACH Act requirements.
April 15, 2008 @ 17:04pm
OK. I agree that PBL doesn't work without sharing.
Can all 100 students access the electronic database at the same time and view the article (assuming 100 computers are available)? If the answer is yes, I think the use is clearly fair.
I think there's a lot more room for debate if that's not the case.
I think factor 1 (educational use) is strong in most cases. Stronger for younger students.
I think factor 2 is probably in favor of fair use. Problem-solving suggests to me that the works will be more factual than creative.
Factor 3 probably works against fair use.
I believe that factor 4 is related to factor 1. If the educational use is weak, the market effect will be weak.
I think that factor 1 outweighs factor 4 unless factor 1 is extremely weak. So, I'd ask the students why they are emailing the 100. If their answer is "because we can," I'd say the use is unfair.
However, keep in mind that most librarians consider my position extremely liberal. I think most people will think that the 100 is unfair in any scenario.
April 15, 2008 @ 17:04pm
I focused on fair use because that's what was asked, but now that Freya mentions it, I think she is right.
April 15, 2008 @ 17:04pm
I think part of the reason that students use email to send to 100 is because that seems the simplest and quickest way to them. They all have access to the electronic resources, but if something isn't available electronically, they scan (book chapter or article) and then email it. I looked at our course management system again and I think there are ways they could use that for sharing of documents and information, rather than sending emails. It is for education; they are using factual material; it might be an article or few pages from a textbook--in some cases it is going out to the entire class of 100, so I guess the market effect is the questionable area.
April 15, 2008 @ 17:04pm
I think it is a mistake to say, as Freya does, that fair use does not apply because multiple copies for classroom use are permitted. I wish that were the case, but the courts have told us pretty clearly that the examples listed in the beginning of section 107 are still subject to a fair use determination in each specific case. Multiple copies for classroom use is such an example, and the particular circumstances would still have to be run through the fair use factors.
In Campbell v. Acuff-Rose, the Supreme Court said that "whether a use referred to in the first sentence of Section 107 is a fair use in a particular case . . . depend[s] upon the application of the determinative factors." In the Michigan Documents Service case, the 6th Circuit specifically applied that ruling to the case of multiple copies for classroom use.
April 15, 2008 @ 17:04pm
[quote=ksmith]I think it is a mistake to say, as Freya does, that fair use does not apply because multiple copies for classroom use are permitted.[/quote]
Just to clarify, I didn't mean to imply that fair use can not apply, just that I don't think it needs to be the focus in this case. That may be a small distinction, but I think it's an important one.
In any case, I think that using the course management system instead, while possibly less convenient, might clear up the issue for PVader's school.
April 15, 2008 @ 17:04pm
If the focus here is not fair use, what is it? My point was that a fair use analysis is still the only way to use multiple copies for classroom use without permission. As for distributing them through a course management system, that may strengthen the fair use argument, but it is still a fair use determination that must be made.
April 15, 2008 @ 17:04pm
This is a good reminder to go back and read the actual law carefully from time to time, rather than getting into habits. I think you're right, ksmith. This is a fair use discussion and the law doesn't give carte blanche for "multiple copies for classroom use." I apologize to all for any confusion that my previous comments may have caused.
That said, I think that the law does seem to specifically favor multiple copies for classroom use. If the students follow relatively standard guidelines of spontaneity and currency (which AFry, in E-reserves and multiple semesters, at http://www.librarycopyright.net/wordpress/punbb/viewtopic.php?id=1429, argues may still be too conservative), which it sounds like the students are doing, it still doesn't seem to me that the size of the class would be an important factor.