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A dispute between the University of California, San Diego’s library and the American Association of Publishers over the placing of library material online for students may be headed for a lawsuit, according to University of California General Counsel Mary MacDonald. “They’ve made it clear they see this as an opportunity to challenge the use of electronic reserves,” MacDonald said. “They see this as a national issue and it’s just that their information for the U.C. San Diego library is the most complete.” Allan Adler, the vice president in charge of legal and government affairs for the publishers’ association, said the group would rather work out a compromise, but that he could not rule out the possibility of a suit. “We’re clearly not rushing to the courtroom,” Adler said of the six months of discussion with the university system. “But we’re not ruling it out.” The dispute arises from the growing academic practice of making assigned class reading material available electronically as “e-reserves.” Students once physically had to go to the library to use the reserved journals, articles and books or purchase a course packet that was put together with the knowledge and permission of the materials’ publishers. The publishers’ association is concerned that e-reserves infringe on copyrights — and reduce sales. The fair use doctrine allows limited use of materials but the limits for electronic use aren’t clearly delineated in case law, according to professor Jonathan Zittrain of the Harvard Law School. Traditional course reserves — and the elements of U.S. copyright law that explicitly permit libraries to lend books — may be economically tolerable to publishers because accessing such reserves is inconvenient to students,” he said. “Creating electronic reserves may seem like only a difference in degree of accessibility, but the publishers will point out that the creation necessarily entails the making of copies, for which fair use is an uncertain defense.” KEY STICKING POINT One key sticking point is what the association calls transparency — having the professors post the required reading list online so that the association and others can see what’s being used. “Because it happens behind university firewalls, we can’t determine how much material is actually being used,” Adler said. “When we obtained the university reading list for two terms, we found a number of things that could not be justified under the most extreme definition of fair use.” The universities counter that the association, academia and researchers should work together to create a uniform set of voluntary guidelines for posting such material.

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