After months of conflict and failed negotiations, the University of California and the Association of American Publishers remain at odds over the legality of electronic reserves, a free service that allows faculty and students to access course materials online. While both sides said they would prefer to cooperate in altering the current practice as the preferred method of resolving the dispute, AAP has made clear that it will pursue litigation against the university if no other viable option exists.
Conflict:
AAP claims that eReserves is in violation of the “fair-use” clause in federal copyright law, which specifies conditions for legal usage of portions of copyrighted text for commentary or criticism.
“AAP members are understandably concerned that faculty may increasingly be utilizing eReserves programs to provide required course readings to students in a manner that is tantamount to providing ‘electronic course packs,’” AAP Vice President for Legal and Government Affairs Allan Adler said.
The publishers initially contacted UCSD officials last June regarding certain copyrighted postings made on the campus library’s Web sites. In addition, the organization met with UC officials in November to discuss the possibility of adopting procedures through which the university system could legally grant access of copyrighted materials to students and other appropriate parties.
Now the university’s attorney has said that the campus made significant changes in how it conducts the transfer of electronic copyrighted material, while AAP maintains that the changes are not acceptable.
UC Office of the General Council attorney Mary MacDonald said she conducted her own investigation of the matter at UCSD, composing a letter to the publishers in which she outlined various steps that the university had undertaken to ensure that fair-use principles were in effect.
“I informed them that it was my conclusion that fair use had not been violated by UCSD, and encouraged them to try to work cooperatively on a national scale with libraries and universities to reach voluntary guidelines for [electronic] reserves rather than hinting at legal action against one university,” MacDonald stated in an e-mail. “I received a reply about two months later that was essentially dismissive of my letter.”
The university has encouraged the AAP to drop threats of a lawsuit and help create a set of voluntary electronic collections that will gain approval from the publishers. The national Conference on Fair Use attempted this 10 years ago, although its members ultimately failed in efforts to negotiate an agreement.AAP wants faculty to post all of their electronic reserve materials for the coming term on publicly accessible Web sites to allow AAP to monitor usage and determine whether or not the readings constitute fair use.
“We have informed AAP that this is not a workable solution for a variety of reasons, including that it would be unprecedented for the university to require its faculty to undertake a process designed exclusively to allow an outside entity to monitor their activity and that the Academic Senate would have to be consulted in any event,” MacDonald said.
AAP said it has focused its investigation on UCSD because its compiled records were the most complete the group had been able to obtain from any university.
“Our focus on UCSD arose from the serendipitous receipt of extensive documentation of eReserves postings in successive academic terms at that campus, which permitted AAP members for the first time to peer beyond the firewalls … and know exactly how reserve programs are being implemented for college courses at campuses all across the country,” Adler stated in an e-mail to MacDonald.
Though federal law clearly establishes civil litigation as the primary means for copyright enforcement, Adler said the group believes that suing universities and their faculty may mean suing some of its members’ most important customers and authors.
“While we obviously cannot rule out the possibility of litigation against such parties, particularly in circumstances where nonadversarial efforts have been exhausted without resolving a critical infringement issue, AAP prefers, and in the instant matter has attempted, to pursue a satisfactory resolution to the problems we found in UCSD’s eReserves program through cooperative dialogue and suggestions for modest changes in academic policies and practices, rather than through litigation,” Adler stated.
