Ethical Case Study: Course Reserves

Copyright and Fair Use for Academic Course Reserves

Meet Lois

WileyLois Wiley is a librarian at her local university library. She is in charge of handling all course reserves.

Dr. Brothers wants to put a book on reserve for his class: Economics for the Financially Challenged.

Meet Dr.

Brothers

The Showdown

What They Watched

Ms. Wiley’s Library & Its Course Reserve Policy

All libraries rely on the First Sale Doctrine for the right to circulate materials.

Fair Use is an important part of the library’s reserve policy.

The library has added specific guidelines to its reserves policy.

First Sale DoctrineThe holder of a lawfully owned copy is

authorized “without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy” (codified at 17. U.S.C. 109 [a]).

Libraries do this when they purchase a copy (first sale) and loan the book, periodical, or film out while not paying the copyright owner anything further.

“The first sale doctrine supports the notion of subsidized browsing, a critical concept in Librarianship” (Rubin, p. 335).

Fair Use DoctrineThe Fair Use Doctrine allows libraries to place

material on reserve if it meets certain criteria: 1. The purpose and character of the use, including

whether such use commercial or for nonprofit educational purposes

2. The nature of the copyrighted work3. The amount and substantiality of the portion

used in relation to the copyrighted work as a whole

4. The effect of the use upon the potential market for, or value of, the copyrighted work (Rubin, p. 335)

The factors of Fair Use are deliberately vague. . .so, Ms. Wiley’s library has established some

specific rules to protect itself: If an item is not owned by the library, it can

only be put on reserve for one semester Because, repeated reserves of such an item

could be seen as affecting the potential market value of the item

After one semester, the item will be placed on a list of items that cannot be placed on reserve

Our Ethical Theories

Consequences Theory

Duties Theory

Consequences Theory Analysis

The main example of a consequence-based theory is utilitarianism. According to utilitarianism, goodness is measured in terms of the amount of happiness in the world. Thus, the right action is the one that maximizes overall happiness (Fallis, p. 27).

What are the consequences?What are the consequences that could result

from the Ms. Wiley putting the book on reserve?

The professor and his students could use the text.

The library and the librarian could be in violation of both the First Sale Doctrine and the Fair Use Doctrine. Thus causing damage to the author and publisher.

The librarian would be violating the library’s reserves policy.

What could happen if Jane violates copyright law?If Ms. Wiley decides to put the book on

reserve in order to appease the professor, what could the consequences be for the her or the library?“Willful copyright infringement is a federal

crime, punishable by imprisonment, fines or both” (Minow, 2003)

A copyright owner can also pursue a lawsuit in civil court, which could lead to large monetary damages being awarded to the copyright owner.

Ms. Wiley could lose her job.

How Much Happiness?By allowing students access to materials the

professor believes important to their studies, Ms. Wiley enhances the students’ education. This makes the students, their parents, and Dr. Brothers happy.

But, by violating copyright law and the fair use doctrine, the librarian would make the book’s author and publisher unhappy.

And, by violating the library’s reserve policy, Ms. Wiley would make the library administration and the university unhappy.

Duties Theory AnalysisKant’s theory: right action is the action that

could be made into a universal law to the benefit of all of humanity (Fallis, p. 28).

Ross’ theory: based on following our moral intuition, and includes “a duty to keep our promises, a duty to distribute goods justly (justice), a duty to improve the lot of others with respect to virtue, intelligence and happiness (beneficence) and a duty to avoid injury to others” (Fallis, p. 28).

What Duties Does Ms. Wiley Have?Duty to keep her promises as a library employee.

As an employee, Ms. Wiley has promised to follow library procedures. If she violates library procedures, she is breaking her promise.

Duty to keep her promises as a citizen by following the laws of her country and respecting copyright law.

Duty to avoid injury to others, in that if Ms. Wiley provides access to the materials, she could be injuring the author and publisher by preventing them from making money on their product.

Other Duties to Consider:Duty to improve the lot of others with respect

to intelligence by providing materials important to their education.

Duty to distribute goods justly because the items are shared equally.

Duty to provide access to information by making the materials available. Access to information is an additional duty that

Fallis suggests as a library professional’s duty on p. 28.

ConclusionsAlthough we are greatly sympathetic to

Dr. Brothers and his students, we believe that based on a combination of Consequences Theory and Duties Theory Ms. Wiley should not put the book on reserve for Dr. Brothers.

However, we do think there are some legal compromises possible:Dr. Brothers could contact the

publisher in order to gain permission to place the whole book on reserve.

While he is waiting for a response, Dr. Brothers could make a copy of a small section, 10% or less, of the book to place on reserve for students.