Doesn restricting use of the e-reserve material to enrolled students by means of password access make it fair use?
No, the imposition of password controls on access to copyrighted materials does not, by itself, make use of the materials fair use. Whether the materials are made available for use electronically or through conventional hard copies, fees are typically based in part on the number of students who have access to the material. Password protection ensures that the number of students with access does not exceed the number for whom fees are paid, but it does not in itself authorize use without permission or payment. Similarly, “checkout” procedures that, for example, may limit the period of time that any download is available, or limit the number of copies that can be printed from the download, or preclude digital reproduction and distribution, may be relevant to a determination of the appropriate permissions fee to be charged, but such protections do not by themselves render a particular use fair use. It should be noted, however, that copyright owners are more likely to grant permissions for
