A different sort of campus copyright fight

Making materials available to all students at once, 24 hours a day, hardly counts as limited access typical of hard-copy reserves, said Allan Ryan, director of intellectual property for Harvard Business School Publishing, the university unit that sells business case studies and the Harvard Business Review.

Troy Williams, chief executive of Questia Media Inc., said companies like his would have no incentive to scan in hard-copy materials and track down rights to do so if schools were permitted free access. He said Questia has spent $150 million to put 60,000 books online.

Nonetheless, electronic distribution is rapidly replacing paper. Two years ago, University of Arizona libraries stopped paper reserves of articles and book chapters entirely and have seen book reserves in decline.

"Students want the 24/7 access," said Frances Maloy, president of the Association of College and Research Libraries and a librarian at Emory University. "They want it online. They don't want to have to go to the library."

Many professors now bypass libraries completely thanks to the ease of scanning and the availability of software for creating course-specific, password-protected sites.

"Professors can do it without asking anybody else to help them," said Loyola University law professor Dane Ciolino. "Does that make it lawful? No. It just makes it increasingly possible."

For a summer class on copyright, New York University professor Siva Vaidhyanathan plans to post all of his law review assignments online, figuring that it's legal as long as it's limited to enrolled students.

"We feel pretty confident what we are doing is OK, although I know enough about the unpredictability of fair use to know a case might not go our way," said Vaidhyanathan, who has written books critical of modern copyright laws. "I could get sued this summer for doing this."

The American Library Association's copyright specialist, Carrie Russell, notes that lawsuits thus far have been against commercial copy shops like Kinko's rather than nonprofit schools or libraries. She added that many of the items put on electronic systems are ones already owned by libraries in paper form.

In the San Diego case, the publishers group was able to obtain details on the university's use of electronic materials, though Adler would not say how it did so. Adler said the amounts used go beyond what professors might typically put on hard-copy reserves or what students might tolerate reading when given only limited access.

He said he has been in contact with university officials for the past year but has yet to receive a satisfactory reply.

Mary MacDonald, a counsel with the University of California system, was unavailable for comment, but the school issued a statement that said she believed the electronic materials were covered by fair use.

Publishers say they have no idea how much revenues they were losing because they don't know the extent of the copying. But while libraries suggest that paper reserves are on the decline, a nonprofit organization that collects royalties on copyright holders' behalf said paper still accounts for the bulk of licensing at universities.

Harvard's Ryan said licenses typically run $2 to $4 _ but they add up.

Adler said a lawsuit remains an option, though publishers were not rushing.

Questia's Williams observed, "I think publishers have been sitting on the sidelines waiting for a good facts scenario before bringing a case." The case, he said, will only get stronger "as we transition to a world where everything is online."

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