A professor requested that six chapters from an out-of-print book be uploaded to e-reserves for her course. Does this require permission since the book is no longer being sold and the copies will be password-protected?
First establish whether the work is copyright protected and to what extent. The work may be in the public domain or have limited rights reserved. Works that are registered with the U.S. Copyright Office generally have all rights reserved, but it may be worth looking into whether only specific rights are reserved for more recent works.
If the work is protected, the use must be evaluated using the four factors of Fair Use . In this case, “substantiality” and “effect on the market” are the two factors that tip the use to potentially being unfair. “Effect on the market” is often the factor of most concern. Request permission for use if, in your best judgment when applying the "four factors," you believe using the work does not fall under Fair Use.
However, it is important to note that it does not only refer to the consumer market for original works. It may also refer to the market for licensing of works that are no longer being sold. In this case, the effect on licensing opportunities combined with the amount being used suggests that permission should likely be sought.
Password protection is in compliance with Fair Use and also useful for material that is covered by a copying license stipulating a definitive number of users.