Comments on: One more topic from eIFl: Fair Use http://library.duke.edu/blogs/scholcomm/2009/04/16/one-more-topic-from-eifl-fair-use/ Duke's source for advice and information about copyright and publication issues Tue, 17 Nov 2009 04:32:11 -0500 http://wordpress.org/?v=2.8.4 hourly 1 By: Scholarly Communications @ Duke » Fair use, by comparision http://library.duke.edu/blogs/scholcomm/2009/04/16/one-more-topic-from-eifl-fair-use/comment-page-1/#comment-775891 Scholarly Communications @ Duke » Fair use, by comparision Wed, 17 Jun 2009 13:14:03 +0000 http://library.duke.edu/blogs/scholcomm/?p=1311#comment-775891 [...] for research and teaching found in the copyright laws of most other countries.  I blogged about those reflections a couple of months ago, and also wrote recently about the history of fair use in the [...] [...] for research and teaching found in the copyright laws of most other countries.  I blogged about those reflections a couple of months ago, and also wrote recently about the history of fair use in the [...]

]]> By: Peter Hirtle http://library.duke.edu/blogs/scholcomm/2009/04/16/one-more-topic-from-eifl-fair-use/comment-page-1/#comment-619261 Peter Hirtle Sat, 18 Apr 2009 13:30:23 +0000 http://library.duke.edu/blogs/scholcomm/?p=1311#comment-619261 Kevin, I have no quibbles with your articulation of the importance of fair use. I do think, though, that your depiction of digital ILL as being "clearly outside of the “single-copy” parameters of the specific ILL exception in section 108" may overstate the case. There is no question that in the process of making a digital ILL, temporary or ephemeral copies are made. The question is whether these transitory copies are "copies" for the purpose of copyright. Kenny Crews at the 108 Roundtable hearings in Chicago argued that they are not. And there have been cases (most recently the Cablevision case) that would suggest that ephemeral copies are not copies. In short, an argument can be made that, even with a digital ILL system, only one copy (in a copyright sense) is being made and the activity is therefore sanctioned by 108. Until proven otherwise, I would think this is a position that all librarians would want to endorse. Kevin, I have no quibbles with your articulation of the importance of fair use. I do think, though, that your depiction of digital ILL as being “clearly outside of the “single-copy” parameters of the specific ILL exception in section 108″ may overstate the case.

There is no question that in the process of making a digital ILL, temporary or ephemeral copies are made. The question is whether these transitory copies are “copies” for the purpose of copyright. Kenny Crews at the 108 Roundtable hearings in Chicago argued that they are not. And there have been cases (most recently the Cablevision case) that would suggest that ephemeral copies are not copies.

In short, an argument can be made that, even with a digital ILL system, only one copy (in a copyright sense) is being made and the activity is therefore sanctioned by 108. Until proven otherwise, I would think this is a position that all librarians would want to endorse.

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