Scanning 100% of a book into Blackboard

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  • This relates to my earlier post about who owns copyright and e-reserves. I have acquired more information from the graduate assistant helping the faculty member with this particular request, and would like to get some feedback from this group.

    Here is the situation: A professor would like to post each and every chapter of a book he has co-authored on Blackboard for his students to access and use as a textbook for a course. This is an online course, so not every student would have access to a physical reserve copy (if one was placed on physical reserve). The book that this professor co-authored is currently out of print and published by the Centre of Transportation Studies at UBC in Vancouver. The material is the primary text to be used in class. At this time, we are unsure as to who owns the copyright. The library has a copy of the book, so it would be the library’s book that is scanned and posted on Blackboard.

    Should I apply Fair Use? Or should I be looking at other laws/guidelines for this situation?

    The main concern is that 100% of the book is being scanned. However, I’m thinking that there are other factors to consider – one of them being that the amount used is only one piece of the Fair Use analysis. For a relatively -conservative library, what would you advise? I would like to hear how others may apply Fair Use in this situation (if it is indeed, applicable).

    This is my Fair Use analysis:

    The character of use: For Fair Use (educational)
    The nature of the work to be used: For Fair Use (non-fiction material relevant to coursework)
    The amoung used: Against Fair Use (100%)
    The effect of the use on the market: would the books "out of print" status apply here? If so, then there wouldn't be any market effect, correct?


  • I am not convinced that fair use is your best alternative here. For one thing, if the copyright was retained by the authors, your co-author professor is perfectly entitled to put the whole book on e-reserve. Under US law, co-authors each have an equal and undivided right in the work and each can exercise the rights in the copyright bundle, although they must account to their co-authors for any profits.

    Because of the possibility that the professor holds this interest, I would suggest contacting the publisher and asking them what the ownership situation is and, if they say they hold the rights, whether they will permit this proposed use by one of the works authors. If they say they do not hold the rights, you can proceed based on the professor's own authorization. This seems like a situation where asking is both appropriate and quite likely to produce a successful outcome.

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