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Sometimes it’s best to consider existing examples.

1. Duke (and I assume other libraries) record full films and, as Karen mentioned, keep them within a pass-word protected Sakai site. Doing that with a book would seem to be a similar case (again during CoVID only).

2. There’s been much discussion about the fair use exception under emergency situations. I can’t think of an emergency greater than CoVID: https://docs.google.com/document/d/10baTITJbFRh7D6dHVVvfgiGP2zqaMvm0EHHZYf2cBRk/preview?fbclid=IwAR3_DdQ6KJJb1I8oeQbDA1Mb7ulkYZJypP3tkZ2xB2mYDQQqj8Jm1VdE7JE#

3. In both these cases, it is required that the copy not only be taken down, but deleted after the class. I think you could do this.

As an addendum, I don’t buy the faculty argument that an entire book needs to be put on reserve. My experience with reserves is that students make surprisingly little use of them, ever in required readings. I suspect faculty just don’t know. Since partial scans of material are allowable (and the law nowhere states an exact amount), would it be poss to scan a chapter, put that on reserve and then when subsequent chapters are added, older ones are deleted? A lot more work, for sure. I think some sort of negotiation with your faculty on whole-item e-reserves is probably warranted.

Lee

From: ARLIS/NA List <[log in to unmask]> On Behalf Of Virginia Roberts
Sent: Wednesday, July 15, 2020 12:31 PM
To: [log in to unmask]
Subject: Re: [ARLIS-L] A question about making book scans + Fair Use during COVID

I am by no means a lawyer, but unless the work is no longer in copyright, copying an entire material would violate the "substantial portion of the work" clause. My understanding that 20% use was permissible.

https://www.copyright.gov/fair-use/more-info.html

Virginia Roberts

Director

Rhinelander District Library--Your Library For Life!

[log in to unmask]

715-365-1070 x1082 (work)

"Libraries will get you through times of no money better than money will get you through times of no libraries."
--Anne Herbert

From: ARLIS/NA List <[log in to unmask]> on behalf of Leah Sherman <[log in to unmask]>
Sent: Wednesday, July 15, 2020 11:05 AM
To: [log in to unmask] <[log in to unmask]>
Subject: [ARLIS-L] A question about making book scans + Fair Use during COVID

Dear Collective Wisdom,

I hope you are all safe and well! I am writing to ask how your institution is handling scanning requests during the COVID pandemic. In particular, I am interested to know how you are responding to requests to scan entire books, especially in an instance where the book in question is only available in print. Are you filling such requests and if so, are you using Fair Use as your argument?

Just to give a little context, at FSU we currently have 2 services in place while our library spaces remain closed to the public: 1) we are doing a curbside pick up for physical books from our collection for individual check out, and, 2) we are offering to scan articles and portions of books from our collections, either for individual use or to upload into an instructor’s Canvas course site as an e-course reserve (we will not be resuming physical course reserves this fall, regardless of whether or not the physical library building reopens to patrons).

Unsurprisingly, our Arts and Humanities disciplines have begun asking for scans of entire books, and in the Arts most of these requests are for titles that are only available in print (no e-book is available and they have not already been digitized in Hathi or Google Books, etc.) Even after speaking with some faculty about reproduction restrictions, they still feel strongly that the entire content of these titles is crucial to their instruction, tests, and research assignments this fall and they do not think a selection of chapters will be sufficient. With this in mind, and with my earlier points that we will not be resuming physical (in-person) course reserves (so course-wide access to the content would be otherwise unavailable) and that the scanned versions would only be accessible behind a login (and not made freely available so as to negatively affect market value), I am inclined to say that there is a case here for a Fair Use argument in order to indeed scan and upload the full text into Canvas after all.

So TL;DR: are you getting similar requests to make scans of entire print-only books from your faculty and if so, what is your response? Why?

Thanks for any and all thoughts! I appreciate every one of you,

Leah

Leah Sherman
Visual & Performing Arts Librarian
Florida State University Libraries
116 Honors Way
Tallahassee, FL 32306

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