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Monthly Archives: November 2010

Oh, Canada! Controversial Copyright Decision Up North

In the United States, persons seeking permission from copyright holders to use works in a manner not covered by exemptions in the Copyright Act (e.g. Fair Use) frequently utilize the Copyright Clearance Center (CCC) to facilitate the request. The CCC collects a fee, including the royalties charged by the copyright holder, and in turn permission for use is granted. Universities frequently use the services of the CCC, who coincidentally is helping fund the litigation against Georgia State, not only to secure permissions for the posting of materials on reserve but also to collect royalties on behalf of university presses. In Canada, the organization AccessCopyright functions in much the same way as the CCC.

On March 30, 2010, AccessCopyright (AC) filed a proposed tariff with the Copyright Board of Canada to cover the reproduction of published works by Canada’s colleges and universities. Previously, AC offered licenses under which two fees were collected.  Institutions paid a flat fee determined by FTE to cover day-to-day photocopying, and students paid a per-page copyright royalty when purchasing a course pack.  Under the proposed tariff, universities and colleges would pay a single flat fee per student to make all the copies they need, up to 20% of any given publication. The justification offered by AC: creators are entitled to compensation when their work is used. Under the terms of the proposed tariff, faculty and students would be permitted to photocopy, scan and upload to secure networks, and email portions of copyright-protected published works.

The proposed tariff drew harsh criticism from students, university administrators, and others. In response to criticism, AC compared its proposal to the services offered by the CCC, stating: “The Copyright Clearance Centre in the United States licenses the reproduction of copyright-protected materials to post-secondary institutions in a very similar manner to the proposed tariff.” (See Response to article on proposed Access Copyright Post-Secondary Educational Institution Tariff, 2011-2013.) Despite the criticisms launched against the proposed tariff and the decision by several Canadian institutions to discontinue photocopying and reserves services altogether in the event the tariff passed, the Copyright Board indicated on November 26, 2010 that it intended to approve an interim tariff proposed by AC,  while it investigates and considers the claims of over 100 objectors. This decision by the Board demonstrates a failure to acknowledge the high cost that will be imposed upon students in restraining their access to materials and upon educational institutions who do not have the budgetary means to pay the tariff. It is also a failure to acknowledge that the authors of the copyrighted works do not view the paltry royalties received as “compensation” as argued by AC. Rather it is AC, just as it is the CCC in the United States, that stands to profit from imposition of the tariff.

The Terms that Bind

Accompanying nearly every item of electronic technology, whether it is software, database, or digital media device, is a document that dictates how that technology may be used. These documents, known more commonly as “terms of use” or “license agreements,” are contractually binding on both the provider and the consumer, even if that consumer is an academic institution and its constituents. A common misconception amongst users of electronic technology in an academic context is that these terms of use can be eschewed on grounds of educational fair use or academic freedom.

One example of such misconception is the use of Netflix subscriptions by academic libraries. Following the publication of an article in Library Trends detailing the workflow created at a community college library to manage a Netflix subscription, how the subscription was used as a tool for collection development, and the limitations of a subscription compared to library ownership of media, several libraries spoke out about their own experiences utilizing Netflix on an institutional basis. In response, several publications, including the Chronicle of Higher Education and American Libraries, reflected upon the legalities of this practice. The author of the Library Trends piece indicated that the library’s Netflix subscription complied with federal copyright law because teaching faculty were permitted to display legally obtained films in a face-to-face classroom situation. While her interpretation of copyright law is correct, whether or not the films were obtained “legally” is doubtful. Per the Netflix Terms of Use agreed to by any one subscribing to their service, “use of the Netflix service … is solely for your personal and non-commercial use.” This indicates that use of the Netflix service by an institution to circulate videos to their service population is a violation of these terms, which in essence is a breach of contract. Academic copyright expert and attorney Kevin Smith agrees. As quoted in the Chronicle, Smith states: “My personal opinion is that the risk of a contract problem makes it not worthwhile for us to have a program to lend discs that we borrow from Netflix.  It’s not a copyright issue. It’s an issue of the contract between the user and Netflix.”  Further, Netflix does not offer institutional subscriptions and “frowns upon” libraries loaning Netflix DVDs or video stream to faculty members to share with students.

Another common misunderstanding arises in the use of full text materials accessible through licensed databases. While libraries and universities strive to include the most liberal of usage terms when negotiating licenses for scholarly databases, oftentimes use is curtailed in the interest of access. Institutions are forced to not only pay high subscription costs but also bargain away certain uses in order to secure convenient and complete electronic access to full text scholarly journals for faculty and students. Yale University maintains an excellent web site dedicated to promoting the creation of agreements with publishers that assure access to knowledge. The site also provides links to many of the most common scholarly content publishers and hosts licenses. As an example of the challenge faced by libraries and academic institutions when trying to serve the needs of their community and at the same time comply with the legally binding terms of the publishers’ agreements, review the Terms and Conditions of Use of JSTOR. Paragraphs 2.1 and 2.2 specify the permitted and prohibited uses of content found on JSTOR. Pursuant to paragraph 2.1 “Authorized Users may search, view, reproduce, display, download, print, perform, and distribute Licensed Content” for a variety of purposes, including research activities and classroom instruction; however, such uses will be deemed in violation of the terms of the license should they appear to be any of the practices detailed in paragraph 2.2, such as the reproduction or distribution of content in bulk in course packs or electronic reserves. As stated previously, this reality is a reason why the academic community should champion open access.

Georgia (State University) on My Mind

Last month, a federal district court judge ruled on the cross motions for summary judgment filed in the lawsuit against Georgia State University for copyright infringement. Unexpectedly, but thankfully, the ruling on those motions has opened the door to an actual trial being conducted. The hope of academic institutions and academic publishers alike is that some clarification will be offered as to the boundaries of fair use as pertains to electronic reserves.

To bring the unaware up to speed, a brief review of the litigation follows. In April 2008, three major academic publishers (Cambridge University Press, SAGE Publications, and Oxford University Press) filed suit against various officials, including the provost and library dean, of the Georgia State University system alleging copyright infringement. The complaint accused the University of engaging in “pervasive, flagrant and ongoing unauthorized distribution of copyrighted materials” via the course management system Blackboard™, departmental web pages, and hyperlinked online syllabi. The complaint alleged, specifically, that at the time of filing the University had stored on its servers 6700 works that had been used in over 600 courses and that these works had been repeatedly and systematically made available to faculty, students and staff for downloading, viewing, and printing without first obtaining copyright clearance from the copyright holders. The publishers do not seek monetary damages but rather seek to enjoin the University (and ostensibly other educational entities) from further engaging in this type of electronic reserves practice.

In the months that followed, the University dramatically revised its copyright policy. Both sides also filed motions for summary judgment, accompanied by lengthy briefs. Now, some thirty months after the suit was first filed, the trial judge ruled on those motions. The motions required the trial judge to review the three claims of liability presented in the compliant: (1) direct copyright infringement, (2) contributory copyright infringement, and (3) vicarious copyright infringement liability. The direct liability claim stemmed from the publishers’ contention that even if the individually named University officials did not personally commit infringement, the employees of the University acted in the scope of their employment when they posted materials online and that their infringing conduct could thus be imputed to the University (“doctrine of respondeat superior”). The trial judge dismissed this claim in favor of the University on the ground that the doctrine of respondeat superior could not legally support a claim of direct liability.

The vicarious liability claim arose from the publishers’ argument that the University committed infringement by facilitating and encouraging faculty, students and staff to view, download, print, and otherwise distribute materials that had been posted online in the e-reserves system in violation of the publishers’ copyrights.  The trial judge again ruled in favor of the University on this issue. In order for the University to be vicariously liable, it had to be shown that the University profited financially from the infringing use of copyrighted works by its faculty, students, and staff. The publishers’ argument that the University’s purchase and promotion of a course management system and other current technologies, which have many non-infringing uses, attracted and retained students was insufficient to demonstrate that the University realized a financial profit through distribution of copyrighted works.

As to the claim of contributory infringement, the trial judge denied both parties’ motions for summary judgment, and this remaining issue will thus be resolved at trial. Because the University revised its copyright policy after suit was filed, the judge directed that the publishers must demonstrate at trial that infringement is likely to occur under the revised policy. Conduct under the prior policy is irrelevant because, under the doctrine of sovereign immunity, the University is liable only for future, or continuous and ongoing, infringement. Further, and significantly, the judge noted that the policy as currently written does not induce or encourage infringement. As such, the publishers have the burden of showing that the policy is implemented in a way that facilitates and encourages ongoing and continuous infringement.

The good news for those in the academic community is the revised policy adopted by Georgia State University resembles those copyright policies adopted at numerous institutions across the country. Further, by placing this heavy burden upon the publishers, the trial judge has invited an examination of various scenarios played out in libraries and academic institutions every day. The hope is that this examination and review of the examples sure to be brought before the trial court will clarify and define the bounds of fair use in a way that benefits educational users of copyrighted materials.

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