How do principles of fair use in copyright law apply to materials included in e-reserve systems?
The statute avoids specific answers and directs us to consider the four factors equally when determining if a particular use is “fair use,” and it is always best to remind ourselves that “fair use” is an affirmative defense to an action for infringement of the exclusive rights of copyright. An affirmative defense means that infringement occurred, but it was legally excused. As a general rule, if use of the content would not be considered fair use in hard copy, it is not likely to be considered fair use in digitized form, whether as part of an e-reserve system or otherwise. The applicability of fair use principles to materials in e-reserve systems will, as in all fair use cases, depend on the particular facts and circumstances involved.
