Baseball season officially ended this week with the conclusion of the World Series, and Cubs fans are still basking in the fading glow of what almost was. This season, the the “W” flew more often than not for the Chicago Cubs — the “W” referring to the flag flown at Wrigley Field whenever the Cubs scored a win. Well, this season, fair use “flew the W” in a few significant cases that I would like to take a moment to highlight.
Katz. v. Chevaldina
In this rather bizarre case, Florida real estate mogul and NBA team ownwer Raanan Katz filed a copyright infringement action against a former shopping center tenant who used a photo of Katz in a blog post she wrote criticizing Katz for his business practices. The photo (the copyright of which was transferred to Katz by the original photographer) is an up-close photo of Katz with his eyebrows raised and his tongue sticking out. Chevaldina was granted summary judgment at trial on the issue of fair use. Katz appealed, and the court affirmed. The court agreed that Chevaldina’s use of the photo on her blog constituted fair use.
In analyzing the first factor of fair use, the court found that the inclusion of the photo on the blog was a transformative use because the photo, which had been characterized as unflattering, ugly, and compromising. She used the photo for the noncommercial purpose of satire and criticism, as allowed under the fair use statute, and to warn others about Katz’s documented business practices. Further, the photo, which had been previously published, was primarily factual in nature (factor two) and was more a fortuitous shot than a work of creativity. As to factor three, the amount of the work used, the court concluded that this factor was neutral with respect to fair use analysis. Finally, the court found no harm to any potential market (factor four) for the photo as the only purported reason for estopping use of the photo was censorship.
Lenz v. Universal Music
Popularly known as the “Dancing Baby” case, Lenz v. Universal Studios concluded this summer with another win for fair use. In this case, Lenz had posted a very short video on YouTube documenting her toddler’s adorable dance moves. During the less than 30 second grainy video clip, the sounds of Prince’s “Let’s Go Crazy” can be heard in the background. Universal Music issued a take down notice pursuant to the DMCA, and Lenz filed suit against Universal contending that it should have considered fair use before availing itself of the DMCA procedure. On appeal from a trial court judgment dismissing the parties’ cross-motions for summary judgment, the Ninth Circuit Court of Appeals ruled not only that fair use is a legal right and not an affirmative defense, but also that copyright holders must consider fair use before issuing DMCA take down notices. Now, Universal must prove at trial that it did in fact consider fair use before issuing its take down notice
Author’s Guild v. Google
In perhaps fair use’s biggest win of the season, the Second Circuit Court of Appeals ruled in this decade long lawsuit that Google’s book scanning project is fair use. Judge Leval, author of not only the court’s opinion but also of a seminal scholarly work on “transformative” fair use, concluded that Google’s scanning of books held in the collections of its library partners and displaying of snippets of those books online for the purpose of allowing searchers to identify relevant works was a transformative use. Leval summarized the court’s opinion as such:
Google’s unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copyright is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals.
I will refrain from recounting the court’s full analysis of the four factors of fair use here. Several authors have already done a superb job of summarizing Leval’s fantastic opinion, which overwhelmingly stresses the purpose of copyright as benefiting the public and the importance of transformative uses of copyrighted works to realizing those benefits. I direct you to the following for thorough and accessible recaps of the opinion:
Techdirt – “Appeals Court Gives Google a Clear and Total Fair Use Win on Book Scanning”
EFF – “Big Win for Fair Use in Google Books Lawsuit”
ARL – “Issue Brief: Second Circuit Court of Appeals Affirms Fair Use in Google Books Case“
This summer, the Association of College and Research Libraries (ACRL) presented for comment a draft of its Framework for Information Literacy for Higher Education. The Framework outlines the key concepts and objectives that today’s information literacy curricula should encompass. This The last of the six “frames” outlined by ACRL states that “Information has Value.” Under this, the drafters recognize that information has value as intellectual property, and therefore, learners, as both consumers and creators, of works have responsibilities to preserve this value. These responsibilities include giving proper credit and attribution to creators of works, understanding the basics of intellectual property law in the United States, differentiating between the creation of original works and remixing or repurposing existing works, identifying works in the public domain, and recognizing the importance of access to information. Libraries have been increasingly engaged in instructing college students in these areas. Librarians practicing in the area known as scholarly communications regularly provide workshops and resources on academic integrity (proper citation and attribution), copyright, open access, and creative commons licensing. However, a recent editorial in the Chronicle of Higher Education suggests that the responsibility of educating college students on these responsibilities does not solely rest with libraries. UCLA engineering professor John Vellasenor suggests that “colleges owe it to their student to do a better job of offering courses that provide a foundational awareness” of intellectual property. Intellectual property is not just for lawyers, Vellasenor correctly posits, but is instead for students of every discipline as every field of study involves some level of creativity. However, he observes, the need for such instruction is not generally recognized across disciplines, and faculty are not likely to offer a course that is solely on the topic of intellectual property or that includes this as a significant topic of study within another course. This is an opportunity for librarians to become more embedded in curriculum of the universities where they work. Librarians already recognize the importance of intellectual property as a component of information literacy instruction, and with faculty starting to see the need for students to have a basic understanding of intellectual property, librarians have the duty to step up and assist with filling this need.
Has your library started partnering with faculty to meet this need? Do you have any thoughts about this opportunity? I look forward to hearing from you.
Today, I’m going to provide a brief update on federal initiatives targeted toward making federally funded research articles and data publicly accessible.
There have been four primary federal actions in the last 12-18 months addressing public access to federally funded research.
A week after the introduction of FASTR, the White House Office of Science and Technology Policy issued a directive requiring agencies with over $100 million dollars in extramural research expenditures to make articles AND data publicly available no later than 12 months after publication.
Then, 11 months later, the government essentially codified into law the directive of the OSTP memo for the agencies of the Departments of Labor, Health & Human Services and Education by requiring them through the 2014 spending bill to make research articles funded by those agencies publicly accessible within 12 months after publication.
Finally, in March of this year, a bill was introduced in the House entitled the Frontiers in Innovation, Research Science and Technology Act or FIRST and in section 303 of that bill public access to federally funded research articles is required no more than 24 months after publication, with agencies also being granted the option by policy to extend that embargo by an additional 12 months. The language of the act also mentions access to data within 60 days of the accompanying article’s publication but does not specify the mechanisms or parameters for accessibility or use of the data.
So what is the current status of these initiatives – and what steps are outlined therein for their implementation if passed or approved.
FASTR was referred to committees in the House and Senate shortly after it was introduced. There hasn’t been any other Congressional activity on the bills since their referral. However, there has been a large outpouring of public support for the bill. Various library, publishing and public interest organizations have signed onto a joint open letter to Congress supporting the bill and this fall the provosts and presidents from 65 different institutions also issued an open letter to Congress in support of FASTR.
By the terms of the OSTP memo, agencies had to submit their implementation plans by August 2013 and those plans were to be implemented by February 2014. Despite a request from SPARC and other interested parties, the details of those plans have not been made public. The latest information is that the plans are currently undergoing revision in response to feedback received from OSTP and OMB.
Meanwhile, two groups have undertaken development of systems to assist with implementation of the OSTP directive.
ARL, APLU and AAU released their plans for the Shared Access Research Ecosystem last summer, however, development of those plans has been a tad slow. The most recent news from SHARE is the development of a Notification Service which will alert interested parties such as universities and funders, of the release of research output from their faculty, researchers and grant recipients. A beta release of this notification system is scheduled for this fall and the full release for fall 2015. Additional planned components of SHARE include a registry for articles and data, a discovery tool for users to locate funded research across repositories, and a content aggregation system to facilitate data and text mining.
Publishers have also coordinated to create a system called CHORUS or the Clearinghouse for the Open Research of the United States. A pilot database of funded articles was released fall and to date over 100 publishers have signed on to participate. The Departments of Energy and Agriculture and the National Science Foundation are also participating in a pilot of a dashboard whereby interested persons can search an individual agency for funded papers.
As for the spending bill – it was signed by the President, and what this amounts to is a codification of the OSTP memo for those agencies specifically named in the bill. We should see plans or policies emerging from these agencies soon with respect to how they plan to make funded research available. It will be interesting to see if they adopt policies similar to NIH or if they avail themselves of the options currently being developed in the wake of the OSTP memo.
Finally, opposition to FIRST has been ramping up while we await markup of the bill from the House Committee on Science, Space and Technology. Several institutions, including SPARC, EFF, Public Library of Science, and Creative Commons, have signed on to joint letters sent to the committee opposing FIRST.
So, while we await the outcomes of these various federal bills and directives, what can we as libraries, researchers, educators and citizens do?
First and foremost it is important to stay informed, not only of the status of these bills but also of implementation plans. I would also recommend that you contact your local legislators. SPARC has provided wonderful letter templates and talking points that can be utilized by library deans and directors or by a university’s government relations office. You may also want to encourage the heads of your institutions to sign on to the advocacy letters drafted by SPARC and other organizations. Communication is key going forward so stay in contact with campus offices that are involved with research activities and funding, with faculty, with your colleagues at other libraries and even with publishers. We are all stakeholders in these endeavors and open lines of communication and cooperation will be key to the success of whatever plans are adopted by the agencies affected.
Finally, if you work in a library or at a university, start laying the groundwork of how your office or staff will be involved in compliance efforts. What staff members may be involved in implementation, how can existing resources, such as repositories, be leveraged, etc.
Here are some resources you may find helpful:
- SPARC Resource Page on FASTR http://sparc.arl.org/advocacy/national/fastr
- Harvard Open Access Project Resource Page on FASTR http://bit.ly/hoap-fastr
- SPARC Resource Page on OSTP Memo http://sparc.arl.org/advocacy/national/directive
- SHARE http://www.arl.org/share
- CHORUS http://chorusaccess.org/
I recently completed a one year appointment with the Association of Southeastern Research Libraries as Visiting Program Officer for Scholarly Communications. This was a wonderful opportunity to network with fellow scholarly communications professionals at the 40 member institutions of ASERL as well as build a scholarly communications program for ASERL and put us on the map nationally as leaders in this growing area of importance. As part of my responsibilities during the last 12 months, I examined the policies and practices of our members in several areas: open access, library publishing and resource sharing. I authored four papers reporting the results of conversations with and surveys of ASERL institutions. The final of these four papers is posted below and at the ASERL website.
Resource sharing emerged as a common library service in the mid-1960s as library automation and telecommunication technologies developed. These developments allowed library networks to grow from an already-established tradition of cooperation among American libraries. The two primary forms of resource sharing in the early days were interlibrary loan and cooperative acquisitions. When resource sharing involving only delivery of physical objects, libraries were only concerned with complying with the Copyright Act, primarily Section 108(g)(2), which states that libraries are not prevented from entering into sharing arrangements so long as the receiving library does not receive copies in such quantities as to substitute for a subscription of the work. As resource sharing grew and electronic access arose as a means of quick and efficient delivery, a group of libraries and publishers known as the National Commission on New Technological Uses of Copyrighted Works – or CONTU – convened in 1976 to develop agreed-upon guidelines for what was acceptable under the newly enacted Copyright Act. The essential component of these guidelines is the “Rule of 5.” That is, within a single calendar year a library should not borrow more than five articles from the most recent five years of publication of a journal. Needing more than five articles from the five most recent years of publications would indicate a subscription to that publication is warranted and permission from the journal is required for further reproduction and sharing.
Today, as libraries engage in a variety of resource sharing activities involving the sharing and acquisition of both print and electronic resources domestically and abroad, and within local and global consortia of libraries, questions arise whether the nearly 40-year old CONTU guidelines reflect current assumptions about copyright law, fair use, and the scholarly communication system as it presently exists. More directly, what impact does copyright law have on the various modes of resource sharing in which libraries are engaged? What about license agreements? With libraries now collecting more digital content than print, how are libraries protecting copyright and fair use, observing the Rule of 5, and also fulfilling patron expectations for access and use of electronic content? The problem with guidelines is that they have a tendency to both narrowly construe the law and create rigidity in its application. This comes out of a need for the guidelines to be acceptable to many diverse groups with competing interests.
ASERL Survey Results
To gauge current practices and attitudes about these issues among ASERL members, a survey was devised in February 2014 to determine what types of resource sharing practices were in use, what policies govern their resource sharing practices, and how copyright considerations impact lending or acquiring materials through resource sharing. Twenty-six libraries of ASERL’s 38 member libraries responded. Their responses reflect a wide range of resource sharing activities across a wide geographic area and a mix of attitudes and practices regarding the application of copyright law and negotiation of e-resource licenses to their resource sharing activities.
Not surprisingly, all the survey respondents indicated that they regularly share print books via physical delivery (e.g., U.S. Mail), as well as articles or other scanned, non-returnable materials via both physical and electronic delivery. When sharing resources by these means, most members did not discriminate by library type, lending within the state, across the country or across the globe. However, most libraries indicated that they are not presently engaged in sharing of electronic books in any way, and the few that are currently loaning electronic books indicated that only a single chapter or limited excerpts are shared. The small number of libraries loaning electronic books is likely due to license restrictions. Only three ASERL libraries indicated that they regularly include provisions to permit resource sharing when they negotiate the terms of electronic book licenses, even though nearly all other respondents regularly negotiate resource or scholarly sharing rights in licenses for electronic journals and databases.
Currently, only about 1/3 of the libraries that responded to the survey employ a system for tracking these electronic resource license terms. Sample license terms provided by respondents indicate an adherence to Section 108 of the Copyright Act and the CONTU guidelines but do not reflect fair use considerations being made in resource sharing decisions. A few of these examples are below:
- “Under the terms of this Site License, the Licensee is granted the non-exclusive right to supply (whether by post, fax or secure electronic transmission, using Ariel or its equivalent, whereby the electronic file is deleted immediately after print) to an authorized user of another USA library for the purposes of research or private study and not for commercial use, a single paper copy of an electronic original or an individual document from a journal for which a subscription has been paid at the full current subscription rate, in compliance with Section 108 of the United State Copyright Law and with guidelines developed by the National Commission on New Technological Uses of Copyrighted Works (CONTU Guidelines).”
- “The Institutions shall be permitted to use Reasonable Amounts of the Licensed Materials to fulfill occasional requests from other, non participating institutions, a practice commonly called Inter-Library Loan. Customer agrees to fulfill such requests in compliance with Section 108 of the United States Copyright Law (17 USC §108, “Limitations on exclusive rights: Reproduction by libraries and archives”) and the Guidelines for the Proviso of Subsection 108(2g)(2) prepared by the National Commission on New Technological Uses of Copyrighted Works (CONTU).”
- “Licensee may fulfill a reasonable number of requests for Interlibrary Loan of the Licensed Materials from institutions not participating in this Agreement, provided such requests comply with Section 108 of the United States Copyright Law (17 USC §108) and clause 3 of the Guidelines for the Proviso of Subsection 108(g)(2) prepared by the National Commission on New Technological Uses of Copyrighted Works (CONTU Guidelines). Licensee may use print or electronic copies derived directly or indirectly from the Licensed Materials for the purpose of Interlibrary Loan with the same limitations that prevail for paper copies for that purpose made from print journals.”
All of the responding libraries indicated that they employ the CONTU guidelines when making resource sharing decisions. Sixteen of the responding libraries indicated that their resource sharing practices have been codified into a formal written policy. Eleven of those policies specifically address copyright compliance in resource sharing. Most of the respondents have designated someone within the library to handle questions of copyright compliance as pertains to resource sharing:
|Title of Person Responsible for Copyright Compliance in Resource Sharing||Number of Schools|
|Borrowing Services/ILL Librarian||15|
|Access Services Librarian||1|
|Dean or Director||2|
|Scholarly Communications Librarian||2|
In assuring copyright compliance, almost all responding ASERL libraries indicated that they use the Copyright Clearance Center for processing copyright permissions and fees. And although not reflected in the sample license terms provided above, almost all respondents indicated that they consider the principles of fair use when making decisions related to resource sharing. Further, about half of the respondents stated that their staff checks for an open access equivalent – whether it be in an institutional repository, HathiTrust, Internet Archive or some other OA resource – when responding to patron requests for items not owned by the library.
At the conclusion of the survey, respondents were asked to share any final thoughts they had on copyright and resource sharing. One respondent highlighted the growing complexities of international copyright laws and restrictions on interlibrary loan. This is an issue that has come up in the literature and in the news in recent years and will likely continue to cause libraries headaches as US universities establish campuses overseas, the number of online students in other countries expands, and the willingness to lend items to institutions in other countries grows. Other respondents commented on the restrictions in licenses with regard to sharing e-book content with persons outside the subscribing institution. Finally, technological hurdles were also cited as an impediment to lending electronic books.
Resource sharing as a library service has grown exponentially since its advent 50 years ago. Changes in technology have expanded the ability of libraries to share and acquire more information efficiently and quickly, but the failure of copyright law to similarly adapt and change has complicated policy and decision making. As a result, libraries have continued to rely on outdated guidelines and encountered difficulties in negotiating license terms that have raised questions and challenges about the future of resource sharing as a service. The experiences and practices of ASERL libraries demonstrates that the issue of copyright compliance and best practices in resource sharing requires further examination, discussion, and revision in order to meet patrons needs for ready access to scholarly information and assure the principles of fair use are preserved.
Fair use has become increasingly important to the way libraries provide information as evidenced by not only court cases testing the boundaries of fair use in libraries but also the development and promotion of best practices for fair use in libraries. However, reliance upon the outdated “Rule of 5” may hinder utilization of fair use by restricting libraries to numerical guidelines where a broader view of the principles of fair use may be, in application, more equitable to the rights of users and the rights of copyright holders as well. Further, ASERL members’ experiences demonstrate that licensing practices do not always allow libraries to utilize fair use for purposes of resource sharing. Finally, the growing availability of open access resources demands a need for staff training and workflow revision.
 Norman D. Stevens. “Library Networks and Resource Sharing in the United States: An Historical and Philosophical Overview.” Journal of the American Society for Information Science, vol. 31, no. 6 (1980): 405-412.
 William Gray Potter. “Scholarly Publishing, Copyright and the Future of Resource Sharing.” Journal of Library Administration. Vol. 21, no. 1-2 (1995): 49-66.
 Kenneth Crews. “The Law of Fair Use and the Illusion of Fair Use Guidelines.” Ohio State Law Journal, vol. 62, no. 2 (2001): 599-702.
 See the full survey results at http://www.aserl.org/?attachment_id=4118.
I recently completed a one year appointment with the Association of Southeastern Research Libraries as Visiting Program Officer for Scholarly Communications. This was a wonderful opportunity to network with fellow scholarly communications professionals at the 40 member institutions of ASERL as well as build a scholarly communications program for ASERL and put us on the map nationally as leaders in this growing area of importance. As part of my responsibilities during the last 12 months, I examined the policies and practices of our members in several areas: open access, library publishing and resource sharing. I authored four papers reporting the results of conversations with and surveys of ASERL institutions. The third of these four papers is posted below and at the ASERL website.
The Association of Southeastern Research Libraries (ASERL) for the first time commemorated Open Access Week in October 2013 with a live interview with international open access leader Peter Suber. In this webcast, Dr. Suber, author of the definitive guide to open access, spoke with me about the current state of open access and its potential to help solve many of the problems currently plaguing the system of disseminating and accessing scholarly research. These problems include rising subscription costs, declining library budgets, disparate access to research, and loss of control over one’s own research through one-sided copyright agreements. One of the means advocated by Dr. Suber to address these problems is the adoption of open access policies by academic institutions:
“Every strong, new policy increases the likelihood of publisher accommodation, and when enough universities and funders have policies, all publishers will have to accommodate them. In that sense, every strong new policy creates some of the conditions of its own success. Every institution adopting a new policy brings about OA for the research it controls and makes the way easier for other institutions behind it….A critical mass is growing and every policy is an implicit invitation to other institutions to gain strength through common purpose and help accelerate publisher adaptation.”
Several ASERL member institutions have adopted open access policies. These policies differ in their origins, requirements, and application. However, similar issues and questions arose for those involved in the drafting and promotion of the policies, and their collective experience is instructive to other institutions contemplating adoption of an open access policy.
For many institutions that have adopted open access policies, the idea first formed within the institution’s library. For some ASERL members, this was also true. For example, at the University of Central Florida, the idea of an open access policy was raised before that University’s Faculty Senate by the library’s collection development manager and this presentation served as the impetus behind a larger conversation that led to passage of a resolution supporting open access publishing. Similarly, at Florida State University, a research librarian and an e-science librarian raised the issue of open access with the Faculty Senate’s Library Committee, which led to the charging of a task force to undertake the drafting and presentation of an open access policy to the larger Faculty Senate. In some institutions, the idea for a policy begins with a governance body charged with advising the institution’s library. At Emory University, the idea for an institutional open access policy grew out of discussions the University’s Senate Committee on Library Policy had on scholarly communications issues. Similarly, at the University of Florida, the Faculty Senate’s University Libraries Committee took on responsibility for drafting an open access policy for consideration by the full Faculty Senate.
Other times the idea for a policy begins with faculty or a faculty group that is external to the institution’s library. At Georgia Institute of Technology, a faculty member from the College of Computing brought the issue of open access to the forefront by facilitating presentations and town hall meetings where open access and the possibility of an institutional policy was discussed. At Duke University, the idea of an open access policy arose in conversations among the Digital Futures Task Force, a group appointed by the University’s Provost after the University was awarded a Mellon Grant to develop strategies and infrastructure to support new models of digital information use, management, dissemination, and preservation. Dr. Suber strongly favors faculty-led initiatives. As he and his Harvard colleague Stuart Shieber instruct in the “Good Practices for University Open-Access Policies,” the persons leading the campaign for an open access policy should be faculty, with support from librarians: “If the idea and initial momentum came from librarians or administrators, they should find faculty members willing to lead the effort. Because the policy will apply to faculty more than others, it should be a faculty initiative and should be perceived to be a faculty initiative. Otherwise, many faculty will suspect or object that they are being coerced.”
Concerns Raised by Faculty
It is clear that faculty awareness and buy-in are keys to successful adoption and implementation of institutional open access policies. Education and consensus building takes place through formal and informal conversations at department and college level meetings, facilitated town halls, and more indirect forms of communication such as FAQs. These conversations give faculty and others affected by the policy opportunity to raise concerns about policy adoption and implementation. Dr. Suber identified many of these common concerns in the “Good Practices for University Open-Access Policies.” ASERL schools also encountered many of these same concerns in the conversations taking place on their campuses with respect to open access policies. ASERL members I spoke to frequently indicated that faculty expressed confusion about what open access was and what an open access policy required. Faculty equated an open access policy with a mandate to publish only in open access journals to the exclusion of all other publications. This misunderstanding requires an explanation to faculty of the difference between “green” and “gold” open access and a reassurance that faculty may publish in the journal of their choice with, depending on the policy’s terms, a reservation of the right to archive a version of their articles in an open access repository.
Faculty at ASERL institutions also raised questions about the label assigned to the policy document. Many objected to referring to the policy as a “mandate.” Even though the policies adopted at ASERL institutions essentially allow for voluntary participation by their terms or through provision of a waiver, faculty view the terms “mandate” or “mandatory” as hostile and an affront to academic freedom. Dr. Suber addresses this issue in his book, stating: “Unfortunately, we don’t have a good vocabulary for policies that use mandatory language while deferring to third-person dissents or first-person opt-outs.…The word “mandate” is not a very good fit for policies like this, but neither is any other English word.”  Language was also raised as an issue in reference to the description of the version of an article to be deposited in a repository. Faculty at ASERL institutions reported unfamiliarity with the meanings of the terms “preprint” and “postprint.” This confusion highlights the importance of addressing in pre-adoption conversations and in any accompanying documentation not only the distinction between a “preprint” and a “postprint” but also the role of peer review in open access scholarship. Although the preference for open access policies is to request deposit of postprints (the final peer-reviewed manuscript prior to publication), some open access policies and repositories focus on “preprints” (the manuscript version prior to peer review). It is important to distinguish for faculty that open access built on preprints is not a means of bypassing quality measures but rather is a means of making work available more quickly, thereby “creating new and earlier opportunities for citation, discussion, verification, and collaboration.” As Dr. Suber aptly notes, open access is “a kind of access, not a kind of editorial policy.”
Another common concern expressed by faculty at ASERL institutions is the belief that implementation of an open access policy will create a burden upon faculty. There is the perception that compliance with the terms of an open access policy will require a great amount of work. Some ASERL institutions have addressed this concern by developing workflows within the libraries to perform much of the work for faculty. For example, at Georgia Institute of Technology the library has utilized Drupal to create a form where faculty can upload their PDFs and have them loaded by the library into the institutional repository, SMARTech. At Duke University, library staff have been involved in searching for citations and mediating deposit of articles when no conflict with published version appears. As a result of this direct assistance, Duke faculty have responded by locating additional materials to deposit into the repository.
In his book Open Access, Dr. Suber identifies four types of open access policies: encouragement policies, loophole mandates, deposit mandates, and rights-retention mandates. ASERL institutions interviewed for this article have adopted policies representing three of these four types.
- The University of North Carolina at Greensboro, Florida State University and University of Central Florida have adopted encouragement policies. This type of policy is a resolution encouraging faculty to make their work available open access when it is feasible to do so. There is no grant of license to the institution nor other mandate or requirement to deposit one’s work in an open access repository.
- Emory University adopted a policy that is a deposit mandate. The Emory deposit mandate grants the University permission to deposit in its repository articles that are voluntarily published open access; however, for all other articles, the policy allows faculty to embargo access to the works where the copyright agreement with the publisher would not permit access.
- Both Duke University and Georgia Institute of Technology adopted rights-retention mandates. Through rights-retention mandates, the institutions are granted a nonexclusive license to deposit their faculty’s works into the institutions’ repositories, usually with a waiver provision which allows faculty to opt-out of participation. The policies at Duke and Georgia Tech both include waivers, and both have attempted to make waivers easy to attain. At Georgia Tech, for example, a request of a waiver through a simple form is all that is needed.
Adoption of open access policies is usually not the last step for institutions wanting to implement open access campuswide. Continued education about the benefits of open access and refinement of procedures to facilitate deposit of works into repositories are a couple of the activities that may occur once an open access policy has been adopted. ASERL members that have adopted open access policies are also engaged in further activities.
- At the University of Central Florida and Florida State University, activities are underway to revisit the issue of open access in their respective faculty governance bodies with the goal of moving from a resolution encouraging open access to a more formal policy, whether it is a deposit mandate or a rights-retention policy.
- The University of Central Florida will also be taking steps to develop an institutional repository, which will be a prerequisite to adoption of any policy requiring deposit of faculty works.
- The policy at University of North Carolina at Greensboro current applies only to library faculty and the next step is to move toward a resolution that is applicable to the greater faculty body of the University.
- Duke University is working to integrate compliance with the open access policy into the University’s faculty reporting system. Duke recently launched a faculty reporting system called “Elements.” Within that system, faculty will be allowed to upload their articles with a single click, and they will also have access to data from SHERPA/RoMEO about the deposit policies of individual journals, which will assist them with determining what article version they are permitted to archive in the university’s repository.
At the conclusion of his discussion of institutional open access policies, Dr. Suber asserts that in the arena of open access, universities have the opportunity to be leaders rather than followers by adopting open access policies. Several ASERL institutions have established themselves as leaders by adopting policies that exemplify best practices for adoption and implementation of open access policies. Their experiences and available expertise can instruct other institutions within ASERL and beyond on how to open up a dialogue on their campuses about open access and progress toward adoption of a formal open access policy. As quoted above, “[e]very institution adopting a new policy brings about OA for the research it controls and makes the way easier for other institutions behind it.” As more institutions educate their members about the benefits of open access and facilitate, through policies and supportive mechanisms the opening up of scholarship to others, publishers will adapt to make research more open and accessible and the weaknesses in the current system of scholarly communication will be strengthened.
 Peter Suber. Open Access. MIT Press: Cambridge, MA 2012. The book is available open access in a variety of formats at http://mitpress.mit.edu/books/open-access. Additional updates and supplements to the text can be found at http://bit.ly/oa-book.
 For this article, I interviewed persons at the University of Central Florida, University of North Carolina at Greensboro, Florida State University, Emory University, Georgia Institute of Technology, and Duke University. Where relevant, I have also included information from the University of Florida, where an open access policy draft is currently under consideration.
 For more information on drafting institutional open access policies, please see “Good Practices for University Open-Access Policies” at http://cyber.law.harvard.edu/hoap/Good_practices_for_university_open-access_policies. This guide was written and is maintained by Dr. Suber and Stuart Shieber for the Harvard Open Access Project.
 For a list of United States institutions that have adopted an open access policy, see the ROARMAP listing at http://roarmap.eprints.org/view/geoname/geoname=5F2=5FUS.html.
 See Adopting a Policy in the “Good Practices for University Open-Access Policies” http://cyber.law.harvard.edu/hoap/Adopting_a_policy
 See Talking About a Policy in the “Good Practices for University Open-Access Policies” http://cyber.law.harvard.edu/hoap/Talking_about_a_policy
 Suber, Open Access, 87-88.
 Id. at 102.
 Id. at 103.
 Suber, Open Access 78-81.
 University of North Carolina at Greensboro Open-Access Policy for Library Faculty http://library.uncg.edu/services/scholarly_communication/open_access_policy.aspx
 Florida State University Open Access Resolution http://guides.lib.fsu.edu/content.php?pid=228434&sid=1889920
 University of Central Florida Faculty Senate Resolution on Library Scholarly Literature http://www.facultysenate.ucf.edu/resolutions/2004-2005/index.asp
 Emory University Open Access Policy http://guides.main.library.emory.edu/content.php?pid=43389&sid=2144393
 Suber, Open Access at 95.
I recently completed a one year appointment with the Association of Southeastern Research Libraries as Visiting Program Officer for Scholarly Communications. This was a wonderful opportunity to network with fellow scholarly communications professionals at the 40 member institutions of ASERL as well as build a scholarly communications program for ASERL and put us on the map nationally as leaders in this growing area of importance. As part of my responsibilities during the last 12 months, I examined the policies and practices of our members in several areas: open access, library publishing and resource sharing. I authored four papers reporting the results of conversations with and surveys of ASERL institutions. The second of these four papers is posted below and at the ASERL web site.
“Library publishing” is the latest buzzword on the tongues of library science practitioners and scholars. As the academic publishing world adapts to new business models and growing expectations for open accessibility, libraries have responded by adopting the role of publishing services provider. Recent reports and the formation of the Library Publishing Coalition, an “organization dedicated to advancing the emerging field of library publishing,” evidences the foothold that libraries are asserting in the publication and dissemination of scholarly research in support and hosting of open access content. Members of the Association of Southeastern Research Libraries (ASERL) are active participants in this growing area of library service. In a Fall 2012 survey of ASERL members, 18 libraries reported that they were engaged in the hosting or publication of open access scholarly journals through the Open Journal Systems software, an institutional repository, or some other digital publishing platform.
However, academic library engagement in publishing is not mandated only by the changes in the business of scholarly publishing. The Association of College and Research Libraries also has charged academic libraries with educating students about the economics of the distribution of scholarship as part of the information literacy mission. Specifically, ACRL has found that “librarians who have become more involved with student-run journals find that working with undergraduate students as authors, editors, and publishers is an excellent way to teach about the economic, technological, and legal aspects of publishing, emphasizing the traditional life cycle of scholarly information.”
Publication of undergraduate research is not without its challenges, however. A major issue is sustainability. A natural consequence of working with students is turnover in editorial support staff. Maintaining faculty support and enthusiasm can also be challenging. Another factor for sustainability is competition with disciplinary journals. To succeed, the undergraduate journal needs to offer distinctive and complementary positioning to the disciplinary journal. Another challenge faced by those producing undergraduate research publications is formulation of a streamlined workflow. Questions such as who should conduct peer review, how should the content be disseminated, and what body should maintain control of editing and journal design frequently stymie persons involved in undergraduate research journal publication. Despite these challenges, academic libraries are thriving in the realm of undergraduate research publication. A survey by the Library Publishing Coalition, which will soon be published as a “Directory of Library Publishing Programs,” found that 57% of the responding libraries publish student journals. ASERL Libraries are also engaged in publishing the research of undergraduate students. Three ASERL members recently presented on their undergraduate research publication activities.
Already a host to two journals dedicated to undergraduate scholarship, Tulane University Libraries is a partner with its Center for Engaged Learning and Teaching to develop a new undergraduate research journal, entitled Tulane Undergraduate Research Journal, that seeks to address the challenge of sustainability in publication of undergraduate research and provide an academic outlet to students seeking to become creative, inquisitive, ethical and responsible scholars. The goal of the journal’s planners is to create an organizational model that utilizes the existing relationship between faculty and the Center’s student fellows. The student authors of this new journal will be designated as Fellows of the Center working with faculty mentors on research projects in a variety of academic disciplines, including the liberal arts, science and business. The journal’s editorial board will be comprised of faculty from each of the University’s major schools and departments. Student representatives on the editorial board will function as liaisons between faculty advisors and other students. At present, there is no publication date for the new journal’s first issue. Journal planners are focusing on building adequate support within the academic community to ensure the journal’s sustainability under the proposed model. Discussions are also underway to restructure the two existing undergraduate research journals to incorporate some or all of the elements of the model devised for the Tulane Undergraduate Research Journal.
Florida State University
Started in 2010, The Owl is Florida State University’s vehicle for publication of undergraduate student research. The journal started as a print publication, but migrated to online publication in 2012 through the University’s institutional repository, DigiNole. The journal is now the third most accessed item in the institutional repository. Prior to migration of the journal to DigiNole, The Owl editorial team grappled with issues concerning editor-author email communication, the process for submission of manuscripts, and the professional appearance of the journal. However, by partnering with the library and using DigiNole, the journal was able to address these challenges. Manuscript submission was centralized such that editorial board members had a single easy-to-access site for submissions. Editor-author communication was also moved to the system, thereby obviating the need to use a less secure and inefficient shared email address. The library also has been an instrumental partner in adopting a smoother workflow by training editorial board members on how to use the features of the DigiNole platform. The library’s role will continue as the journal staff works on marketing the journal to the larger campus population and assists in development of citation analysis and reporting of the journal’s impact.
University of South Florida
Successfully publishing undergraduate mathematics research since 2008, the Undergraduate Journal of Mathematical Modeling positioned itself to have greater impact and presence when in 2012 it contacted the library at the University of South Florida about including the journal in the institutional repository, Scholar Commons. Librarians managing Scholar Commons met with the editorial board to review the journal’s needs and issues, such as quality and sustainability. The journal was deemed eligible for inclusion, and design of the journal’s launch page and migration of content began.By partnering with the library for central management of the journal through Scholar Commons, the journal has enabled the library to assign DOIs to articles using CrossRef, to improve indexing of the journal in several databases including the Directory of Open Access Journals, and to streamline the submission and editorial processes. As a result, the journal has experienced a marked increase in findability as evidenced by a steep increase in full-text downloads, from 271 full-text downloads in May 2012, which was the month prior to migration to Scholar Commons, to nearly 700 full-text downloads per month following the journal’s publication in Scholar Commons.
The number of libraries engaged in library publishing services is likely to increase as the scholarly publishing world continues to adapt to new challenges and requirements brought on by the changing economy and governmental mandates. Further, as librarians integrate scholarly communications into information literacy instruction targeted at undergraduates, and universities continue to take interest in the potential of younger researchers, development of additional journals showcasing undergraduate research seems likely. Libraries are a natural partner and collaborator in the development and promotion of these journals, and the number of ASERL Libraries involved in the publication of undergraduate research journals demonstrates how this can be successful. Further, ASERL libraries have succeeded in addressing the challenges often associated with publishing undergraduate scholarship. Through utilization of existing infrastructure and contribution of expertise, ASERL libraries have helped the undergraduate populations they serve showcase their research in a searchable and sustainable way.
 In March 2012, SPARC issued the final report documenting the findings and recommendations of the “Library Publishing Services: Strategies for Success” project which surveyed the publishing activities of North American academic libraries and suggested ways these services could be broadened and strengthened. http://docs.lib.purdue.edu/purduepress_ebooks/24/. In August 2013, the free eBook Library Publishing Toolkit was released. The Toolkit examines the “broad and varied landscape of library publishing” through case studies and articles on the current state of library publishing activities. http://www.publishingtoolkit.org/
 Association of College and Research Libraries. Working Group on Intersections of Scholarly Communication and Information Literacy. Intersections of Scholarly Communication and Information Literacy: Creating Strategic Collaborations for a Changing Academic Environment. Chicago, IL: Association of College and Research Libraries, 2013, 7-8. http://www.ala.org/acrl/sites/ala.org.acrl/files/content/publications/whitepapers/Intersections.pdf
 Charles Watkinson, “Library Based Publishing: Focus on Undergraduate Research Journals,” Presentation to the Association of Southeastern Research Libraries, July 23, 2013. http://www.aserl.org/wp-content/uploads/2013/07/Perdue_Undergrad_Journals.pdf .
 Id. See also Council on Undergraduate Research’s list of undergraduate journals at http://www.cur.org/resources/students/undergraduate_journals/.
 Association of Southeastern Research Libraries, “Library Based Publishing – Focus on Undergraduate Research Journals,” July 23, 2013. See http://www.aserl.org/archive/ for archived presentation and presenter slides.
 See Second Line: An Undergraduate Journal of Literary Conversation and Tulane Journal of International Affairs at Tulane University Journal Publishing, https://library.tulane.edu/journals/index.php
I recently completed a one year appointment with the Association of Southeastern Research Libraries as Visiting Program Officer for Scholarly Communications. This was a wonderful opportunity to network with fellow scholarly communications professionals at the 40 member institutions of ASERL as well as build a scholarly communications program for ASERL and put us on the map nationally as leaders in this growing area of importance. As part of my responsibilities during the last 12 months, I examined the policies and practices of our members in several areas: open access, library publishing and resource sharing. I authored four papers reporting the results of conversations with and surveys of ASERL institutions. The first of these four papers is posted below and at the ASERL web site.
Like research libraries around the world, members of the Association of Southeastern Research Libraries (ASERL) have seen the growth of open access (OA) as a mode of scholarly communication and a resulting rise in the number of open access journals. Today there are nearly 9,000 open access journals published worldwide. A common business model adopted by open access journals for funding their operations is collection of Article Processing Charges (APC) from authors. As a means of supporting the open access movement and encouraging their faculty to publish in open access journals, many universities have established campus-based open access funds. In a 2012 survey of ASERL members about their open access advocacy activities, more than 1/3 of the responding libraries indicated that they currently administer an open access fund, and several additional libraries indicated plans to launch funds in the near future. I recently chatted with several ASERL members about the status of the open access fund at their university. The conversations revealed similarities and differences with respect to management and use of open access funds, which are likely reflective of experiences at other universities.
Conversations with open access fund administrators revealed the multiple ways in which campus-based open access funds are funded. For most, a combination of sources supplies the monies to the fund. A common funding scenario features equal contributions from the library, the provost, and the university’s office of research. Libraries are also committing portions of their central collections budgets to supporting open access publishing. The collective hope is that diversion of funds from subscriptions to support of open access will encourage publishers to adopt open access as a model and reduce subscription costs. At the same time, universities should be educating their faculty on the cost of publishing and the values of open access. Until there is such a level of awareness to bring about the desired shift in publishing economics, libraries will be faced with the decision of potentially canceling subscriptions in order to continue financially supporting open access publishing activities of the faculty.
Interestingly, ASERL libraries have experienced some very different levels of use of the OA funds. One of the funds is still operating with its initial allocation dating from 2008, while a couple funds have run out of monies several times during their lives, leaving faculty waiting for notice regarding the funds’ uncertain future. Libraries have capitalized on this by presenting evidence about the utilization of the fund by faculty and graduate students from diverse disciplines and the growing support within the greater academy for open access, oftentimes leading to recurring support for the OA funds across multiple years. The funds represented in this report allocated from $12,000-$75,000 annually for support of open access publishing.
Eligibility of Applicants and Publications
ASERL libraries are using their OA publication fund as a “fund of last resort,” that is, researchers with grant monies must use grant funds to pay APC charges. Additionally, all librarians I interviewed noted that the failure to include publication costs in a grant application was “not an excuse” for waiver of this eligibility criterion, and all had denied awards on the basis of available grant funding. There were differences in processes used to verify an applicant’s grant status. While some fund administrators regularly verified the availability of grant funds to the applicant through the university’s office managing sponsored research, others simply took applicants at their word regarding the availability of other monies to cover open access publication costs.
All fund administrators permitted applications from faculty, students and staff. One fund administrator reported no difference in the number of tenured versus untenured faculty applying for assistance. This is interesting because a common argument against open access is the reliance of tenure and promotion upon publication of articles in journals with high impact factors or rankings, both of which may not be assigned to or measured for many open access publications. That untenured faculty are publishing in open access journals at the same rate as tenured faculty may discredit this perceived weakness of publishing in open access journals. Additionally, two fund administrators indicated that the faculty at the medical colleges affiliated with their universities were not eligible for support through their campus-based open access fund. Interestingly, these same two funds experienced slower rates of fund depletion experienced at universities that provided APC funds for medical faculty. This supports the common perception that open access is most prevalent and accepted within medical and other life sciences.
There was some variance in practice regarding support of APC charges in “hybrid” open access journals. Hybrid open access journals are those that charge a subscription for access to journal content but also permit open access to those articles where the author has paid an open access fee. Most OA fund administrators believe publishers have added to their revenue stream by collecting the additional dollars from authors willing to pay to make their work openly accessible. As a result, most OA fund administrators in ASERL do not provide funding for hybrid journal articles. However, one fund administrator supports hybrid journals as their library did not want to close any avenue to making research available through open access; if an author was interested in making his/her article available open access, even if through a subscription journal, the library felt fund should support it.
Perceived Quality of OA Journals
There was also much discussion of the quality of open access publications. Most administrators reported that they had rejected applications on the basis of poor journal quality. Quality decisions were typically based upon a listing in the Directory of Open Access Journals (DOAJ) and adherence to OASPA’s Code of Conduct. The use of Beall’s List of Predatory Publishers for determining eligibility was also discussed. While all admired the thought and work that is put into maintenance of Beall’s List, many believed it should not be relied upon exclusively as an arbiter of quality or ethical practice. Some administrators believe the criteria of Beall’s List, if applied, could potentially exclude high-ranking traditional, subscription-based scholarly journals on account of their business and editorial practices. Others felt the criteria also have the potential of mislabeling good quality journals that are too new to be fully tested as predatory, or those that focus on such niche or specialized topics that their coverage and appeal to a narrow group of scholars matters more than adherence to potentially arbitrary criteria.
The usage of the campus-based funds within ASERL libraries mirrored the national trend of open access prevalence in the sciences. Administrators reported that the departments most often using their funds came from medicine, nursing, veterinary medicine, and engineering. All funds had applications from the social sciences and humanities, and one fund administrator indicated that support through the fund of publication of open access books would likely encourage usage in those disciplines. The fund administrators also concurred that faculty and students from business related disciplines had not applied for funds. It is unclear whether a paucity of open access business journals, attitudes of business colleges, or availability of other funds has led to the lack of participation from these disciplines in open access publishing.
Related to the usage of the fund, we discussed how our campus-based funds had been marketed. Typical marketing venues were reported – websites, brochures, and targeted emails. However, the most effective marketing tactic appeared to be word of mouth; most applicants learned about the fund through other applicants. Further, despite their marketing efforts, administrators were still dismayed by how many faculty had never heard of the fund, even after it had been in place for a few years. Through this discussion, administrators indicated a desire that library liaisons or subject experts engage more with faculty and students about scholarly communication issues and inform them of the resources available for publication support.
A few administrators noted spikes in the number of applications submitted at various times during the year. There was no clear correlation between the timing of these spikes and the academic calendar nor discernible publishing cycles. This was a point of considerable curiosity, and we determined this may be worth investigating on a larger scale.
Future of Open Access Funds
The conversation about campus-based open access funds concluded with a discussion of their sustainability. While all agreed that the availability of open access publishing funds was an important part of a university’s overall open access advocacy plan (“it’s putting money where our mouth is”), most fund administrators agreed that the business model of authors paying APCs was not sustainable in the long-term. The administrators were intrigued by emerging business models adopted by the journals eLife and PeerJ, and the success of these new models will be watched closely. The outcomes of the directive from the White House Office of Science and Technology Policy and the proposed Fair Access to Science and Technology Research Act will also greatly impact the future of funding open access publishing and will be closely monitored. The group pondered whether libraries should be diverting funds used to pay subscriptions to large, expensive bundles of largely low-use journals into support of open access, and how libraries could better advocate the many open access journals that do not charge any APCs. Regardless, the APC model of funding open access is likely here to stay for the foreseeable future; if universities want to support open access in more than words alone, the administrators believe universities – not just libraries – should plan to sustain campus-based open access funds through recurring funding.
The Fall 2012 survey of ASERL member libraries regarding their open access activities revealed a keen awareness of and a high percentage of participation in open access advocacy and support. Distribution of funds to support open access publishing is just one of the ways ASERL members promote open access to research. In order to facilitate further conversation and collaboration in open access and other scholarly communication initiatives, ASERL has undertaken development of a scholarly communications program. Through presentations on scholarly communications topics such as altmetrics and library publishing, an in-person event on the role of open access in liaison activities, and the appointment of a visiting program officer for scholarly communications, ASERL hopes to inspire its members to continued advocacy and leadership in the area of scholarly communications
 See Heather Morrison’s “Dramatic Growth of Open Access” for quarterly updates on the increasing number of open access articles and journals. http://poeticeconomics.blogspot.ca/2006/08/dramatic-growth-of-open-access-series.html
 For a summary of the full survey, please visit http://www.aserl.org/wp-content/uploads/2013/06/ OA_Survey_Exec_Summary.pdf.
 I interviewed Gail McMillan (Virginia Tech), Lisa Macklin (Emory University), Claudia Holland (George Mason University), Kevin Smith (Duke University), Molly Keener (Wake Forest University), and Robin Sinn (John Hopkins University). I also administer the Open Access Fund at University of Florida Libraries and have included my experiences in this reflection on campus-based open access funds.
 For more on the cost of open access publishing see Richard VanNoorden’s article “Open access: The true cost of science publishing.” Nature, v. 495, Issue 7442, March 27, 2013. http://www.nature.com/news/open-access-the-true-cost-of-science-publishing-1.12676
 “Increasing Access to the Results of Federally Funded Scientific Research,” Memorandum of the White House Office of Science and Technology Policy, February 22, 2013. http://www.whitehouse.gov/sites/default/files/microsites/ostp/ostp_public_access_memo_2013.pdf
 Sen. 350, 113th Cong. (Feb. 13, 2013). H.R. 708, 113th Cong. (Feb. 13, 2013).
On Thursday, a judgment was rendered in the long-running copyright infringement action filed by Authors Guild against Google for its Google Books search service wherein in-copyright books, many of which were lent to Google by participating academic libraries, were digitally scanned and snippets of scanned pages displayed to searchers. Judge Chin, who has presided over much of this eight year roller legal roller coaster, rendered summary judgment in favor of Google, declaring its book scanning and text display fair use. This judgment is the third in so many months that is overwhelmingly in favor of fair use and the work of libraries, both on their own and in partnership with other entities. In all three cases, similar themes emerged, as demonstrated below, as the trial courts in each case conducted their fair use analyses: educational and research uses are important to promote, providing access to materials to underserved populations is critical, and preservation of at-risk materials is an important social benefit.
Four Factors of Fair Use
In order to invoke fair use, the use or reproduction of a copyrighted work must be for the purpose of criticism, comment, news reporting, scholarship, research or education. Further, there are four factors of fair use, and the balance of these must weigh in favor of such use. Consideration of all of the fair use factors is required; however, all four factors do not have to weigh equally in favor of the proposed use.
The four factors of fair use are: (1) why is the work being used, (2) what is the nature of the work being used, (2) how much of the work is being used, and (3) what effect does the use of the work have on the market for that work.
Fair Use in Google
Judge Chin found three of the four factors of fair use in favor of Google and thus rendered judgment on its behalf. His determinations on each factor were as follows:
Factor One – In many fair use cases of the last 20 years, a determination of transformative use has been dispositive of the first fair use factor. And here, Judge Chin determined that Google’s use of the digital book scans is highly transformative. The use of snippets of text to facilitate researcher, reader and scholar identification of relevant works as well as the the facilitation of text and data mining for research were deemed by Chin to be new purposes lending toward a finding of transformative use. He also determined that these uses had high educational and research value worthy of protection.
Factor Two – Although the works scanned by Google were of all types (fiction, non-fiction, out of print), Judge Chin found in favor of Google on this factor, determining that the majority of the corpus of works scanned were non-fiction or informational works.
Factor Three – Judge Chin concluded that his analysis of this factor weighed “slightly” against fair use due to the fact that entire books were scanned. However, he also acknowledges that scanning of the entire works was necessary to accomplish the transformative uses of those whole work scans.
Factor Four – Because the search of books on Google was likely to lead to the commercial purchase of the book, Judge Chin found no market harm. The scans would not be used to replace purchase of the original.
Fair Use in HathiTrust
In addition to suing Google, Authors Guild has also filed a copyright infringement lawsuit against HathiTrust and several of its partner university libraries. Author’s Guild alleged that HathiTrust’s digitization of books for the purposes of making preservation copies, to allow for full text searching, to provide access to persons with print disabilities, and to allow access to orphan works violated their members’ rights under copyright law. The trial court granted summary judgment in favor of HathiTrust and the universities last fall. The trial court declined to rule on the orphan works question on the ground the issue was not ripe for adjudication because the program was still in development and not yet active. Notably, the judge wrote “I cannot imagine a definition of fair use that would not encompass the transformative uses made by defendants.”
Factor One – The trial court found that the overarching purpose for HathiTrust’s activities is to promote scholarly and research activities, which are squarely within fair use. Scanning works to preserve them, though not transformative, is fair use on account of the overriding public interest in preservation of knowledge. Scanning of works for the purpose of enabling full text searching as a means of identifying works relevant to one’s research is a highly transformative use and thus qualifying as fair use. Digitization for the purpose of providing access to persons with print disabilities is also a highly transformative use qualifying as fair use.
Factor Two – Given the overwhelming transformative nature of the HathiTrust’s uses of the copyrighted works, the court determined that whether or not the works were informational or creative in nature was not dispositive of the fair use question.
Factor Three – The trial court held that even though entire books were scanned, this amount is necessary to the transformative uses made by HathiTrust.
Factor Four – Stating an intention to license the works at a later time for digital access cannot trump the transformative uses already being employed. A copyright holder will not be permitted to preempt a transformative market, particularly where, as here, there is no demonstration of market harm as a result of these noncommercial uses.
Fair Use in Georgia State
In 2008 publishers Sage, Oxford and Cambridge, filed suit against officials at Georgia State University for alleged copyright infringement arising as a result of the posting of book chapters reproduced from handbooks and other books published by them in GSU’s course management system and electronic course reserve system. The case when to trial and in May 2012 the trial court rendered judgment in favor of GSU.
Factor One – Judge Evans found that GSU’s educational purpose was clearly fair use. Significant time was spent distinguishing provision of course reserves by libraries to students enrolled in a course from the for-profit activity deemed infringing in the Kinkos coursepack case. The trial court did find, however, that mere reproduction of scholarly works for course reserves was not a transformative use.
Factor Two – The trial court found that the content of the works copied were largely informational as opposed to creative or artistic and use of informational or factual works was generally considered to be fair use. The court dismissed the “sweat of the brow” argument that the work entailed in producing scholarly works was entitled to greater protection. The court found that permitting reproduction of excerpts of scholarly works had zero effect upon an author’s incentive to create scholarly works. There was no negative impact upon the incentives of prestige, advancement of knowledge or acquiring a positive result in tenure and promotion decisions.
Factor Three – Most important in the discussion of factor three, Judge Evans rejected the Classroom Guidelines both as to amount and repetitive use. The low ceilings imposed in the outdated Classroom Guidelines and advocated by the publishers were rejected by the trial court as inconsistent with fair use as was the suggestion that fair use did not permit repetitive use of works in course reserves. The trial court held that the amount of a work reproduced has to be “decidedly small” and narrowly tailored to the express pedagogical purpose. The trial court also articulated some of its own guidelines, which it did not strictly adhere to when reviewing each of the alleged incidents of infringement committed by GSU. The trial court stated that it is generally to be considered fair use if 10% of a work less than 10 chapters or a single chapter of a work greater than 10 chapters was reproduced.
Factor Four – The publishers failed to demonstrate to the trial court’s satisfaction any harm to their bottom line. The trial court stated that the publishers argument that e-reserves would put them out of business was glib and that any revenues received from academic licensing were at best miniscule. And the recent press release from CCC that it paid out a record $188.7 million in royalties to publishers in 2013 is evidence that they are not hurting.
All three of these cases will be decided on appeal. Oral argument in the HathiTrust case occurred October 30, 2013, and oral arguments are scheduled Tuesday (November 19th) in the Georgia State case. Authors Guild announced its intention to appeal the Google case shortly after the judgment was rendered. Hopefully the appellate courts hearing these cases will further support and strengthen the well-reasoned judgments of their lower court brethren, for as Judge Chin so aptly states, uses such as the ones at issue in the Google case:
Advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.