Page:The librarian's copyright companion, by James S. Heller, Paul Hellyer, Benjamin J. Keele, 2012.djvu/80

64 : different from e-reserves: (i) the coursepacks were sold by the copy centers for a profit, whereas e-reserves are typically produced by non-profit institutions at no cost to the user; and (ii) coursepacks generally contain a large part of the reading for a course, while e-reserves are more likely to feature short pieces that make up only a small part of the assigned reading. While coursepacks almost always require permission from copyright owners, e-reserves can often use copyrighted material without permission as a fair use. “First semester free.” The “first use is free” standard invoked by many libraries is not part of the Copyright Act or any subsequent rulings or agreed-upon guidelines. Any content posted in an e-reserve channel always requires copyright permission, unless it is covered by fair use, public domain, or other exception.
 * Comment: The “first semester free” standard does come from agreed-upon guidelines, although it may be open to misinterpretation. The Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions, which was approved by a Congressional committee and is one of the most authoritative (and conservative) set of guidelines available, describes several factors to be considered in a fair use analysis, one of which is whether material is used only once (which supports a finding of fair use) or is used repeatedly. So you can sometimes use material for free the first time and pay for use thereafter. Of course, this doesn’t mean that you can always use material for free the first time. Frequency of use is just one factor in the analysis.

Get permission before posting. Unlike inter-library loans, you need to secure copyright permissions prior to posting content. Reposting of the same material for use in a subsequent semester requires a new permission.
 * Comment: Again, the CCC sweeps with a wide broom, and sweeps fair use under the rug. The truth is that sometimes you need to obtain permission to post copyrighted content, and sometimes you don’t, depending on the facts of your situation. However, the CCC is correct in pointing out that reposting in a subsequent semester will require a new permission if you needed to get permission the first time.

Incorporating the “best of” the CONFU Guidelines, the CCC guidelines, the ALA Model Policy, and ARL’s Code of Best Practices, here are our suggested guidelines for posting online copies on course Web sites or library e-reserves without permission. At the outset, it’s important to understand that these guidelines only apply to copies of copyrighted material that you want to post online. If the material is already accessible online, whether