I want to address the management of intellectual property rights. Before I do that, I want to talk about the management of physical property -- the books and journals our libraries own. We will always have much more physical property in our care than intellectual property rights. And our interest in managing such rights arises chiefly from the challenges we face as managers of physical property.
So I will start with books and journals and with some ideas about an electronic document delivery service and an electronic reserves service. I will present these ideas as a kind of intellectual shell game, posing a series of questions about three common library scenarios. I ask you to consider whether each of the activities I will describe is legal under the 1976 Copyright Law. Critical to your answers will be the location of not one but of two peas. I will not describe these peas just yet, but only say they exist. Are you ready? (As we play, please remember that this is a game and not legal advice.)
Intellectual Shell Game #1
SCENARIO ONE: A biology professor needs to read an article in a current journal to which her university library subscribes. Now watch the shells!
* Is it legal for that professor to send a university-paid graduate student to the library to photocopy the article for her?
* Is it legal for the library to photocopy the article for the professor, using university-paid staff employed exclusively for the purpose of responding to requests of this sort?
* Is it legal for the library to use its staff to scan this article digitally (instead of photocopying it), put the resulting data file on a server, and notify the biology professor that she can transfer the data to her own networked computer at her convenience?
You will notice that if it is legal for the library to do this last thing, it has thereby created an electronic document delivery service for all of the physical property it owns, without regard to whether it also owns the intellectual property rights.
Shell Game #2
Are we on a roll here? If so, let us consider SCENARIO TWO: Our biology professor now wants twenty of her undergraduate students to read this same article.
* Is it legal for her twenty students to come to the library and for each of them to make a photocopy of the article?
* Is it legal for library staff to photocopy the article for these students, if each student individually requests this photocopying service? In answering this question, consider that library staff observes on the fifth such request that there is repeated interest in this article.
* Is it legal for the library to use its staff to respond to individual student requests by scanning this article digitally (instead of photocopying it), putting the resulting data file on a server, and notifying each of the students that the data can be transferred to them electronically over the campus network?
Notice that if we are not yet in jail, we have created an electronic document delivery service that supports classroom instruction.
And Game #3
Now, while we are out here where the ice is thin, let us consider SCENARIO THREE: Our biology professor wants to save her students the trouble of asking individually for a copy of the current journal article. So she asks the library to place it on reserves.
* Is it legal for the library to place one photocopy of the article on reserves for these students?
* Ten of the students arrive at the library simultaneously, one hour before the test in which the assigned article will figure. Is it legal for one student to check out the single photocopy on reserves, copy it for his use, and pass it on to the next student for copying, and so on through all ten?
* The library is wise in the ways of undergraduates and knows ten of them will want to read the assigned article at the same time. …