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The university has an extensive distance learning program, and the library is asked to serve the needs of these students. How can the library provide copies of materials to these students?

Library service to distance learners is treated the same as service to on-campus students. Consider two traditional services provided by libraries: (1) providing access to reserve collections and (2) assisting students with research projects. Services to distance education students can be offered on a similar basis. The difference, of course, is that students are unable to reproduce their own copies of works from the library's print reserves or from the collection. So, the library must act for the student in many instances.

The library may send copies of print reserve materials to distance learners upon request of the user. If the works are included in the electronic reserves system, then the student may access the materials directly and whatever permission or royalty arrangements the institution has for those works typically covers all enrolled students. For research projects, remote students may access online catalogs and periodical indexes and use those to identify needed materials. When the student forwards a request for these materials, the library should treat the request as a section 108(d) or (e) transaction and reproduce a copy of the article or book chapter and send it to the student either as a photocopy or electronically. It is not an interlibrary loan. Another alternative is to check out the bound volume to the student and send it.

What liability does an individual librarian or library have when a student or patron needs help using the copy machine?

If the library has posted the requisite notice on unsupervised reproduction equipment and follows the other requirements of section 108 of the Copyright Act, it is not liable for the infringing activities of users. This question relates to patrons who are unable to operate the copy equipment due to age or disability or because they do not understand how to do so. Rendering assistance to help a patron use equipment is not the same thing as making the copy for the user under sections 108(d) and (e). The library is not liable should the copies be infringing copies, but the patron still is liable under section 108(f)(2).

What if someone wants to write a cookbook, and although the work uses strictly original recipes, it is later discovered that a similar recipe was previously published? Is it infringement?

The good news is that individual recipes are not copyrighted. Copyright does not extend to ideas or facts, and recipes generally have standard lists of ingredients and directions, so they have been viewed as lacking sufficient originality to qualify for copyright under section 102(a) of the Copyright Act. Cookbooks, on the other hand, are copyrighted as compilations. What is protected is the selection, arrangement, and indexing of the recipes, along with any material such as a preface, descriptive instructions, photographs, and so forth. So, all recipes in a cookbook do not have to be original. Therefore, there is no concern about using a recipe that is similar to a later discovered one.

The Classroom Guidelines state that they are minimum standards. If no maximum standards exist, how do libraries know where to draw the line? The campus attorneys have advised the strictest possible interpretation, for example, no more than nine instances of multiple copying for the students in a class per term without permission from the copyright holder.

University counsel are basically doing what content providers hoped would happen. They are converting minimum guidelines into maximums. The few courts that have cited and discussed the Guidelines on Multiple Copying for Classroom Use (Classroom Guidelines) have tended to do the same. Yet, the Classroom Guidelines clearly were intended to define the minimum of what constitutes fair use. Many other institutions refer faculty members to the four fair use factors (purpose and character of the use, the nature of the work copied, amount used, and market effect) to assist them with making the decision about the maximum use, and they recognize that the numerical limits and portion limitations are indeed minimum guidelines. Librarians should encourage university attorneys to take a broader view of what is permitted under the Classroom Guidelines.

 
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