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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of permission or payment of license fees, far exceeded the bounds of fair use, which they argued were defined by outdated guidelines.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.

The Devil Went Down to Georgia

Three years in the making, the trial against Georgia State University (GSU) for their e-reserves practices begins tomorrow. The course for trial was set at the end of September when the federal judge presiding over the case ruled on the motions for summary judgment filed by the publishers and GSU officials, allowing the case to go forward solely on the claim of contributory infringement. (For a detailed explanation of those motions please read “Georgia (State University) on My Mind.”) However, in December 2010, the court granted the publishers’ motion for reconsideration and permitted them to proceed on the claim of direct infringement, now understood and correctly labeled as a claim of “indirect infringement.”

In the weeks and days leading up to trial, both sides filed the usual and customary motions concerning evidence and other pre-trial matters. But the most noteworthy, and somewhat nerve-wracking, pre-trial filing came from the publishers in the form of a proposed order to be signed by the judge in the event they win their case. The publishers do not seek monetary damages as the remedy for the alleged infringement; rather, they seek to enjoin GSU (and inevitably all academic libraries, college students, and faculty) from continuing to access copyrighted materials through secure digital means without permission and payment of royalties. The proposed injunction filed by the publishers would prohibit all persons affiliated with GSU, including faculty and students, from reproducing, transmitting, downloading, etc. copyrighted materials without permission or in excess of the Guidelines for Educational Fair Use that accompanied the 1976 adoption of the Copyright Act. Nowhere in the proposed injunction is there any mention of fair use as codified at §107 of the Copyright Act.

The publishers’ insistence of limiting GSU, including its students and faculty,  to outdated and overly-strict guidelines is abhorrent. While I do appreciate the guidance and wisdom of the authors of the 1976 Guidelines and their exposition on the concepts of “brevity” and “spontaneity,” I do not believe that guidelines drafted at a time when only print existed and current digital modes of delivering educational materials were not even imagined should be levied against an institution as the absolute maximums allowed. To do so would completely obliterate the balancing test prescribed by the terms of § 107. As an academic librarian, I appreciate the ease and efficiency offered by adherence to numeric guidelines. However, librarians should strongly advocate against imposition of such strict maximums and lobby loudly for fair use.

Further, I do agree that certain versions of the “fair use checklist” often utilized by academics tend to liberally lean toward a finding of fair use; however, the checklist problem should not be solved through such a drastic measure as removal of fair use as a concept and consideration and adoption of very minimum page and word limits.

What the Kinko’s case did to the use of printed coursepacks, the outcome of the GSU case may very well do to e-reserve practices employed at most institutions of higher education. However, the outcome may not be the simple discontinuation of a certain practice or a slight modification of process; rather, fair use landscape may very well be blighted.

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.

Oh, Canada! Controversial Copyright Decision Up North

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

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

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

Georgia (State University) on My Mind

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

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

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

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

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

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

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