Q – I have two journal articles that I want every student in my class to read. May I make enough copies for everyone and hand them out? What about putting them in the Library’s e-Reserves system? The Library subscribes to both of the journals from which the articles are taken.
Both of the suggested uses seem like fair use. But it is important to stress that fair use, which is an exception to copyright’s prohibitions that allows for socially desired uses, is very dependent on the specific facts of a situation. Without complete facts for each situation, any assessment of fair use must be tentative and illustrative only
The fair use exception to copyright allows for copying and distribution for a variety of uses. It lists several exemplary uses, including “multiple copies for classroom distribution.” Although this seems pretty clear, over the years publishing industry representatives have convinced academics to agree to some pretty restrictive guidelines (the guidelines are just that, they are not the law). The guidelines suggest that making
multiple copies and distributing them in class is appropriate only when the copied selection is brief and the use is spontaneous. So the first question is, are you copying only a single article from each of two publications? If that is the case, is this a one time use prompted by the fact that the articles fit very well into the current classroom topic? If
both answers are yes, brevity and spontaneity both apply and you are squarely within fair use.
These guidelines, however, especially that regarding spontaneity, are too restrictive for application to all academic situations, both because they over-interpret the law
and because they limit educational uses too much. The Perkins Library system has adopted an e-Reserve policy that does not include the spontaneity guideline. In other words, we allow articles to be put into the e-Reserve system even if they have been used in previous semesters and are not simply one-time reactions to specific classroom conditions. We believe this is still fair use because of the purely educational purpose
of these e-Reserves and because they do not have a substantial effect on the market for the original, since because only small portions are used, the material would not be required for purchase even if it were not available on reserve.
The bottom line, then, is that if these are single articles from journal issues (rather than photocopies of entire issues, for example) the library would likely put them into the e-Reserve system for you. If you are going to use the articles in subsequent semesters, that is probably the best way to go, since each copy is then made by an individual student for
his or her own personal use, rather than all being made and distributed by you. But in the meantime, making the copies and distributing them this semester seems like a fair use.
One more point is very important. If Duke already subscribes to an online database that contains either of these articles, the best practice by far is to simply link to that online version out of a course website or Blackboard page. Since the link will only work for authorized students, we will be complying with our license obligations and not posing any risk to the copyrights involved.