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At Long Last…a Decision in Georgia
Four years since the filing, one year since the trial, and 350 pages of opinion later…we have an opinion in the closely watched copyright infringement action against Georgia State University. The case pitted prolific academic publishers Sage, Cambridge and Oxford against the GSU provost, Library Dean and others, with the publishers claiming that the policy and practice of GSU’s Library allowed faculty to post, in violation of the publishers’ copyrights, scans of book chapters in the University’s e-reserve and course management systems. In response, GSU contended that its actions fell within the Fair Use provision of the Copyright Act, which the publishers contended that the postings, in the absence of permission or payment of license fees, far exceeded the bounds of fair use, which they argued were defined by outdated guidelines. In the end, the judge found largely in favor of GSU, and in doing so, she crafted a fair use framework (although for the time-being is only legally binding upon persons living in the Northern District of Georgia) that libraries and publishers alike will be analyzing and implementing in the months to come.
The Fair Use Framework of the GSU Case
Under §107 of the Copyright Act, a use of a copyrighted work without permission of the copyright holder is permissible when such use is for the purposes of teaching, research, commentary, news reporting, parody, or criticism, and the balance of four enumerated factors weighs in favor of a finding of fair use. Those four factors as set forth in the statute are: (1) the purpose and nature of the use, (2) the nature of the copyrighted work being used, (3) the quantity of the copyright work being used, and (4) the effect of the use upon the potential market. The application of these four factors to the posting of copyrighted works to electronic reserves systems has long been the subject of scholarly debate; however, this case is the first time that a court has undertaken to apply the fair use factors to such use. The judge’s application of the fair use factors in the context of e-reserves can be summarized as follows:
Purpose and Nature of Use – Because a college or university’s library is a non-profit and educational user, the court found that this factor weighed heavily in favor of a finding of fair use.
Nature of the Copyrighted Work: Because the works at issue in the case were all scholarly, non-fiction works (and many of them reference-type handbooks), the court found that this factor also weighed in favor of a finding fair use.
Quantity of the Copyrighted Work Being Used: Most of the excerpts posted in GSU’s course reserves were 10% or less of the book. The court held that this factor weighs in favor of fair use where no more than 10% of a work with less than 10 chapters or no more than one single chapter in works of more than 10 chapters is used. In amounts greater than this, this factor weighs in favor of the copyright holders. The court also reiterated that where the portion used represents the “heart of the work,” the balance tips in favor of the copyright holder.
Effect Upon the Potential Market for the Work – Where there is a reasonably priced and readily available license for a digital excerpt of the copyrighted work, this factor tips in favor of the copyright holder. This factor also weighs in favor of the copyright holder where the amount used is so great that it substitutes purchase of the entire work.
Answers, Yes, but Also More Questions
Through her careful reasoning and explanation, the judge in the GSU case answered many questions that have been pondered by copyright scholars and academic library practitioners. In particular, she held:
- The posting of copyrighted works in an electronic reserve or course management system is not analogous to the production of print course packs by a copy shop or other commercial entity. Thus, many points in the Kinkos case are not applicable to e-reserves.
- The posting of copyrighted materials in an e-reserve system is not a transformative use. In recent years, a finding of transformativeness has been key to deciding fair use cases.
- The 1976 Classroom Photocopying Guidelines are too restrictive and thus inconsistent with fair use. Further, the judge expressly rejected the “subsequent semester” rule that is an outgrowth of the Classroom Guidelines. Thus, use of the same excerpts for a course from one semester to the next does not mitigate against a finding of fair use.
- No or minimal use can mean no infringement. Where items posted to course reserves are never accessed by students, there is no infringement.
- When calculating the number of pages in a work (for purposes of determining what constitutes 10%), the entire work is counted, including the table of contents, foreword, and index pages.
However, the decision also left scholars and librarians with more questions to ponder:
- What about journal articles, images, videos, etc? The decision in GSU only dealt with monographs; however, many faculty utilize these other categories of works in their courses and request their institution’s library to post these materials in the course reserve system.
- What constitutes a “readily available and reasonably priced” license? And, if the copyright holder does not have a license or permission system available for the work or its excerpts, does this mean its fair use to use it anyway? In the wake of this decision, more publishers will likely either contract with Copyright Clearance Center or invest in devising their own license and permission systems. Does this mean libraries will end up paying more for less?
It will be interesting to see what answers folks on all sides off these issues will propose in the weeks to come and what the next moves of the publishers and their litigation funders will be in response to the judgment.
Open Access – The Power of Knowledge
Open Access Week 2011 draws to a close. This was my first open access week at the University of Florida, an active and vocal supporter of open access, as its new scholarly communications librarian. On Wednesday, the Libraries commemorated Open Access Week with an afternoon of presentations and round table discussions. Entitled “Scholarship Unbound,” the event provided an opportunity for faculty, students and librarians to discus ways in which open access supports research, teaching and learning. This week was also the one year anniversary of this blog. I hope that you have found the posts here instructive and informative.
Events during the year 2011 demonstrate why the concept of open access is so important. The failure of the Google Book Settlement, the lawsuit against HathiTrust and its university partners, and the attempts to restrict international interlibrary loan practices represent attempts, without evidence of commercial harm, to control access to and sharing of large repositories of the modern world’s literary and scientific output. Even more alarming were stories from the Middle East and beyond of governments interrupting their citizens’ access to cell phones and internet in an attempt to thwart the sharing of information crucial to their fight for democracy. Even in our own country we peacefully demand openness and honesty in the fiscal and political decisions being made by those in power. In all these struggles, the creators and curators of our intellectual history, even history that is in the making, must answer to those entrusted to act in our interests and promote dissemination and democracy.
The phrase “knowledge is power,” the origin of which has never been conclusively determined, is a fitting motto for the open access movement. Those in positions of power, whether it be political power or greater bargaining power, seek to hold on to it — while those who create and curate it, seek to share it and empower the world.
Our Best Defense: Open Access
Is academia at war with the publishing industry? Today, University of Michigan Dean of Libraries Paul Courant wrote that publishers have declared war upon us. Columbia University’s James Neal claimed at this Spring’s ACRL conference that the academic library community is, in fact, at the center of this war. In recent months, with actions being taken that chip away at fair use and other copyright exemptions allowed libraries and educators, it is starting to feel that we may be losing the war; and with shrinking budgets and governmental affronts to our existence, we may even feel powerless to fight for our survival.
However, we may have a viable defense that could very well preserve our place as conduits to learning and knowledge. “Open access alternatives seem more and more to be not just a nice alternative, but the only path scholarly communications has left to survival,” wrote Duke University Scholarly Communications Officer Kevin Smith this morning in response to the latest attack (an STM publishers’ association issued guidelines whose underlying purpose is to undermine international interlibrary loan practices) on educational use of copyrighted works. Open access has been touted for several years as the vehicle for revolutionary change in scholarly communications, and it still stands as our best chance for radically changing the economic climate that is leading to assaults upon barrier-free sharing of knowledge and information. However, for us to win this war, we all need to participate: librarians and faculty alike. And our efforts need to be consistent and persistent.
In this month’s Bulletin of the American Society for Information Science and Technology, the open access movement is lauded for single, albeit sporadic, milestones; but “these single events that showed the potential to cause a sudden, radical or complete reform of the entire [scholarly communications] system have failed to precipitate a complete transformation.” The authors of the Bulletin piece claim that librarians can be the most victorious soldiers in this war that we are in. However, it will take a widespread and collective movement to not only survive but even win. There are many libraries and universities out there who are to be commended for their efforts – who have established open journal publishing systems, who have adopted open access mandates, and who regularly promote open access through Open Access Week and other public events. Librarians at Duke University Medical Center Library, in a recent article in Serials Review, offer even more ways of how librarians can successfully incorporate open access into their work and bolster our defense against the war that is waging against us. In addition, legislation such as the Federal Research Public Access Act needs to be revitalized in Congress as further shoring up of our defenses. With this concentrated, widespread, and united drive for open access, I do have hope that we can survive the war.
Scholasticus: When is showing a film a public performance?
I have asked my university’s library to purchase a film that I intend to show and discuss in my class. The company selling the DVD indicates that the library must purchase the more expensive “college/university” copy so that public performance rights are secured. Is showing a film in my class a public performance?
Any librarian who has worked in acquisitions or who has been a selector for their institution’s library has encountered the ethical dilemma of whether to purchase the institutional copy of a DVD. Most distributors of documentary films will list in their catalogs or on their web sites tiered pricing for individuals, public libraries, primary and secondary schools, and colleges or universities. An explanation typically accompanies the pricing scheme that the higher price charged to the various institutions accounts for the inclusion of a public performance license. Most college or university libraries, without question or challenge, pay the higher price – and often the only group viewing of the film occurs in class. So, must the library pay the public performance license price if the only intended viewing of the film is by patrons in private viewing session (even if in the library) or in the physical classroom by a class and its instructor during a regular class session? The answer is: No.
Nothing in the Copyright Act prohibits a library from purchasing DVDs (even those labeled for Home Viewing Only, as is often the case with Hollywood-produced films released on DVD) and lending or renting them to their patrons for personal viewing. Further, under § 110(1) of the Act, educators are permitted to perform or display audiovisual works in a physical classroom setting as part of instructional activities. Thus, purchase of a public performance license is not required for DVDs purchased for and used for these purposes. A public performance license is necessary, however, when a DVD in a library’s collection is going to be screened in a public location on campus by a club or other group or if the library itself is going to show the film. Only if the library knows when purchasing the DVD that these latter uses are intended should it feel compelled to pay the higher price charged. Otherwise, a college or university library is not in violation of copyright law, and shouldn’t be threatened into paying the higher purchase price,when acquiring a DVD without a public performance license for its collection.
(A special thanks to my former Graduate Assistant (who is also a lawyer and now an academic librarian) for inspiring this edition of Scholasticus.)
Is a Code of Best Practices Enough?
Just before the holidays, a team of investigators featuring representatives of the Association of Research Libraries (ARL), the Center for Social Media, and the Program on Information Justice and Intellectual Property (PIJIP) released a report detailing the results of Phase One of their progress toward drafting an academic and research librarians’ code of best practices for interpreting and applying copyright doctrine. These same individuals have previously collaborated on best practice codes for media literacy educators and for documentary filmmakers. Phase One of their research for development of this particular code of best practices entailed interviewing sixty-five librarians. Interviewees were asked about their personal understanding as well as their institutions’ policies and practices with respect to fair use and other exemptions under copyright law. The report summarizes the responses in five categories of librarianship practice: support for teaching and learning, support for scholarship, preservation, exhibition and public outreach, and serving disabled communities. Not surprisingly, the responses greatly vary, which accurately reflects the present (mis)understanding of fair use across academia. Most respondents expressed a lack of institutional support, namely time and expertise from legal counsel offices, and an increasing demand from faculty and researchers for fair use determinations. Without ready and well-versed support from administration, and a fear of retribution levied by publishers of content, librarians have, as concluded by the investigative team, clung to outdated guidelines, hesitated to employ fair use to the fullest, and failed to promote access to information, which is the librarians’ duty and charge.
At the end of the report, the investigators offer a list of suggestions aimed toward improving the situation that academic and research librarians find themselves in. Naturally, the first suggestion is the adoption and employment of the code of best practices, which the team aims to publicly disseminate by 2012. Assumedly, this Code of Best Practices will replace the outmoded guidelines that most libraries still use in one modified form or another. The remaining suggestions address the issues with institutional support and publisher threat. Institutional support, the investigators propose, should take the form of the creation of a dedicated copyright office in the Library or through the campus legal office. Publisher threat should be addressed at the time of license negotiation. While these suggestions are all material and useful, their are not novel or unheard of. A Code of Best Practices is a collective understanding of how fair use applies — same as the outdated CONTU guidelines, which are still used in one modified form or another, and other organizationally prepared suggestions (e.g. ALA, CCC, AAUP) for application of fair use in libraries. The Code of Best Practices may be a statement of the currently agreed-to understanding by librarians as to the application of fair use but what still lacks is a judicial or legislative clarification of fair use as applied to the ever-evolving modes of publishing and content delivery. Institutional buy-in is also universally desired and needed. However, as long as libraries are viewed by administrations as a cost center rather than as an asset to be supported and supplied, devotion of resources to development of copyright offices or dedicated personnel will not come easily.
I applaud the work of the investigative team. I have had the pleasure of being taught by two of its members. I look forward to the completion and publication of the Code of Best Practices. However, I do not feel that this will be the answer that we in the field are needing. Faculty and students need to be encouraged to become copyright aware. The requirement of the HEOA that universities distribute to students copyright information targeted toward anti-piracy is one way that this tactic is in force. Department chairs and deans should invite librarians or campus counsel to departmental or college meetings to discuss copyright and fair use. Faculty should assume greater responsibility for making fair use determinations and work in greater concert with librarians. As one of the interviewees stated, faculty have a greater understanding of their educational goals and curriculum. Administrative or institutional support is important; however, education and responsibilities amongst faculty and students are also key.
