RAQs: Recently Asked Questions

Topic: Sharing supplemental textbook resources 11/17/2017
Can a faculty member, who no longer requires students to buy a textbook, duplicate and share (with...
Posted: Friday, November 17, 2017 Permalink

MEMBER QUESTION

Can a faculty member, who no longer requires students to buy a textbook, duplicate and share (with the students) the supplemental instructional resources provided by the publisher? The resources can be both digital and hard copy.

WNYLRC ATTORNEY'S RESPONSE

Sometimes, an instructor will try and solve both these problems by removing the book from the syllabus, while keeping a few choice materials on hand from the instructor copy supplied by the publisher. This seems like a win-win: the students have one less book to buy, while the lecture notes, visual aids, and LMS can carry forward the valuable content retained by the instructor. But is this scenario allowed?

The answer lies in the specific product’s license. And while there are countless publishers with every permutation of license, that answer will probably be: NO.

How can this be? Isn’t it Fair Use? Didn’t the institution or instructor already buy the materials?

This is where things get interesting.

First: how can this be? It is a very deliberate tactic by the publisher. Responding to a market resisting expensive textbooks, academic publishers are always developing new ways to incentivize purchasing. One technique is selling student materials “coupled” to instructor-side materials via a license. The license conveys a copy, rights of duplication, and perhaps digital sharing for instructor-side materials, conditioned on a requirement that the textbook be “adopted” (officially required) in the course syllabus. The instructor, who is getting free materials, adds the book, and the contractual requirement is met (until it isn’t).

This approach is some pretty clever lawyering (and marketing), since it uses copyright, often some trademark, and a lot of contract law to give instructors more rights than they have under copyright law (to duplicate, upload, etc)…and then yanks those rights away, if the book is no longer required. The fact that these rights are financially under-written by students is one of the unsung tensions of higher ed.1

Second: Fair Use. There are many circumstances in which limited duplication of instructor-side materials could qualify as Fair Use (teaching a course critically analyzing instructor-side materials would be one of them). But simply continuing to use the rights from a license the purchaser has departed from (by no longer adopting the textbook into the syllabus) is not one a Fair Use…it’s just a violation of the contract, and potentially, of copyright. Both could bring penalties; one contractual, and one statutory.

Finally, “First Sale Doctrine”: Some rights to the instructor-side hard copy might be retained under the “First Sale Doctrine,” which allows purchasers to re-sell, read, and retain physical copies once they are in the market.2 But beware…the license could contain a contractual requirement to return the instructor-side materials when the license is no longer valid (this would be done through a rental or other restricted acquisition provision).

The answer to a question like this is almost always in the specific license from the publisher.3 Deviation from those terms, unless there is a very clear case of Fair Use, is not wise.

 

1 My tone is cynical, but on the flip side, this is how the authors and creators of instructional works get paid. We can discuss the equities of this system another day!

 

2 The First Sale Doctrine is taking a beating from the increasing reliance on digital copies. But that is yet another topic, for another day!

 

3 Something our member suggested, when posing the scenario. WNYLRC has savvy members.

 

Tags: Copyright, Fair Use, Textbooks, Photocopies

The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.