What is the relationship between out of print and out of copyright?
Question
I work in the reserves department at the library. We have been asked by a faculty member to scan an entire book for online reserves. Normally this is not something we would do however, this work is no longer in print. Also, the book was last published in 1999. I am wondering if we should scan the book because it is out of print or if this is a copyright problem?
Response
This is doubtless an issue that will come up over and over again. Indeed the ease of modern copying technology makes this a murky area for many folks in academia to grasp. But ease of copying even in an educational setting does not necessarily mean "fair use".
It is important to note that "out of print" does not mean out of copyright. What is the book's date of publication? Further, since we do already have a print copy, scanning the entire book is essentially re-creating a copyrighted work in its entirety. This is never permissable without permission and/or payment of royalties.
Given your frontline position in reserves, when considering questions of "Fair Use" (under which your question falls) it is always best to review the resources listed here: http://libwww.syr.edu/copyright/materials.html#fair_use
There are four standards by which "fair use" is determined:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and;
(4) the effect of the use upon the potential market for or value of the copyrighted work.
If you can make no claim to, or if you are likely to contravene two or more of these, one might rightly question if this is actually fair use. In your case #2 and #3 are problematic. Indeed the undeniable weight of contravening #3 by scanning an entire work makes this a very iffy proposition.
Given the potential liabilities to your place of employment (University and Library), given that scanning entire books is already a high profile case with Google Print (et al.) raising serious questions, and given that the faculty member's request cannot get around #3 no matter how restricted the classroom access or educational the nature of use, you would therefore be on firm ground to deny the request. Besides, the item could still be accessible through print reserve.
The faculty member may, of course, ask that DISC scan portions (10%+) of salient passages which highlight his/her pedagogy. Those can still be placed on e-reserves. They should, however, be taken down when the semester ends and deleted in digital format from Library server(s).
Please feel free to pass this on to the faculty member, or have them contact me directly if there are further questions. But the fact scanning is "easily" done, doesn't make it fair use simply because it is being done for educational purposes. I urge you to become fully conversant with "Fair Use" and its four attributes. Asking the right questions is the first step on this road to copyright understanding. Thank you for bringing this to the attention of SUCAC and me.
