There has been a lot of insightful and thorough discussion
of the copyright infringement lawsuit filed by publishers against Georgia State
University, notably by Kevin Smith at Duke, at Library Journal, and at The Chronicle of Higher Education. In the post below I recap the events for those
who have not be following, discuss the purpose and value of reserves, and examine
the implications of the GSU ruling for librarians and others who support fair
use in higher education.
GSU Recap
In 2008 three academic publishers (Cambridge, Oxford, and
Sage) filed a lawsuit against GSU claiming that their e-reserves policy amounted
to widespread copyright infringement. The lawsuit was bankrolled by the
Association of Academic Publishers and Copyright Clearance Center; CCC is a
for-profit company that contracts with publishers to license the use of
electronic excerpts of copyrighted works. (See Educase summary). The publishers
submitted a list of 99 instances where they felt that GSU was violating their
copyright.
In May of this year (so, four years after the lawsuit was
first filed), the U.S. District Court for northern Georgia released its 350 page opinion on the case, written by Judge Orinda Evans. The upshot? The Court
found that in 94 of the 99 cases fair use applied and GSU had not violated the
publishers’ copyrights. Generally people see this as good news for GSU and for
universities in general, though the case is not definitely settled and may well
be appealed.
The bulk of the opinion is an instance-by-instance
examination for 74 of the 99 cases, but Judge Evans also gives general thoughts
on when and how a non-profit educational institution can claim fair use of
copyrights materials. Before I get into the implications of the ruling, though,
I think it is important to step back and think about the purpose and value of
the e-reserves in higher education.
What is the purpose
of (e)reserves?
Whenever I get to know a new library, I always ask about
reserves. As a student in grad school, my professors saved me hundreds of
dollars and provided lively, interdisciplinary courses through the use of
e-reserves. No other institution where I’ve worked or studied has used
e-reserves as heavily as the iSchool (indeed, my non-LIS graduate program made
much less frequent use of reserves). I can see how a publisher reading this
might blanch at the lost licensing income, but in reality the culture at the
iSchool was to use e-reserves as a convenient place to store all of the course
readings. Many of the readings were articles accessible (and properly licensed)
through the library’s databases. Nonetheless my pocketbook and I greatly
appreciate the terms when I was able to spend a mere $20 or $30 on “textbooks.”
In general it seems the use of reserves (electronic or
otherwise) varies by institution, department, and even instructor, based on
culture, expectations, and preferences. Likewise, the purpose and value of
reserves is not the same everywhere. Some instructors don’t use reserves
because there are good textbooks available for a course (also, sometimes,
because it is just easier), while others need to use reserves because the
course draws on a wide and interdisciplinary set of works (and also perhaps to
save students money). To be clear, I think it is perfectly valid for an
instructor to make use of reserves in order to save students money. I do not
think that doing so is necessarily or even likely to be a violation of
copyright, and I think that the recent GSU ruling upholds this view.
Practical
Implications of GSU Ruling
The ruling is ultimately about fair use of copyrighted
works. Fair use is a notoriously (and purposefully) vague portion of copyright
law that allows some unlicensed use of copyrighted materials in some instances.
At many institutions, libraries craft guidelines or policies for what materials
can be considered fair use, but leave it up to professors to determine what they select for fair use. For those who haven’t been pouring over copyright
laws recently, the four factors that are weighed in determining fair use are:
- the
purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
- the
nature of the copyrighted work;
- the
amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
- the
effect of the use upon the potential market for or value of the
copyrighted work.
In her opinion, Judge Evans determined that in the majority
of cases, GSU’s e-reserves were covered by fair use. Specifically, Evans found
that the first factor weighed heavily in favor of GSU because it is a
non-profit education institution. The second factor also weighed in favor of
GSU, because the works in question were all factual in nature.
The question gets more complicated in the third factor. Publishers
would like there to be a hard and fast rule about how much of a work can be
used under fair use, and they would like that amount to be very little. Evans
considered rulings from other key copyright trials and ultimately suggested
these guidelines for acceptable fair use: for works with 9 chapters or fewer,
10% of the total pages; for works with 10 or more chapters, 1 chapter may be
used. Notably, the Judge deemed that it was “impractical, unnecessary” to
prohibit the use of the same excerpt from one term to the next (p. 71), which
is a guideline that many institutions follow. Thus, though many librarians and
professors are disappointed that the Judge set out a “bright line” rule, she
rejected the narrow, limited guidelines that the publishers called for.
The fourth factor for fair use also resulted in a
complicated ruling. The Judge rightly pointed out that income from licensing is
a very small percentage of the publishers’ overall income. However, she again
drew on existing case precedents to determine that when “permissions are
readily available from CCC [Copyright Clearance Center] or the publisher for a
copy of a small excerpt of a copyrighted book, at a reasonable price, and in a
convenient format” (88-89) then unpaid use of that material is not considered
fair use.
This ruling is not binding for other libraries or higher
education institutions, though as Educase points out it is likely that the opinion
could be used in future copyright disputes.
Though this may seem to help clarify fair use, this opinion will not be legally binding for other institutions. Indeed, the ALA is urging libraries not to change their fair use policies quite yet. Additionally, this case is part of a long-term trend that has important implications for libraries everywhere.
Long-term
implications
As a said earlier I think the laudable purposes of
e-reserves include making course readings free and easily accessible to
students and enabling professors to design courses that draw on diverse and
interdisciplinary resources. Though libraries do not have to be involved in
providing e-reserves, many of them are for obvious reasons, and I think the purpose of e-reserves dovetails with the spirit and values
of academic libraries. I think it is important to note that many items put on
e-reserves are items that the library has already paid for, it simply makes access
easier for students in that course when it is on e-reserve. (I’m not sure if this
was the case for the instances addressed in the GSU lawsuit.)
Given that e-reserves are pretty innocuous, and
that fair use does not substantially cut into the profits of publishers, I find
the fact that the lawsuit was filed worrisome. I see this as part of
a larger trend in academic publishing in which publishers claim that the
digital environment is enabling copyright abuses, while in fact they use these
same digital advances to control and limit access to scholarship and research. Consider
how publishers have imposed restrictions on the number of times libraries can lend
an ebook or how some publishers prohibit ILL distribution of journal articles. While
the digital environment theoretically makes access easier for users (those who
have the financial and technological means), publishers limit the way that we
can use these works to even narrower parameters than we were able to with their
print counterparts. By and large, libraries use e-reserves in much the same
way they used paper reserves, but now students can access these works from
their home. In response, publishers filed an extensive and sweeping lawsuit,
claiming that these practices threated their profits and their livelihoods.
Judge Evans called these claims “glib”, but I suspect this is just one of many
ways publishers are seeking to use technological advances to lock down their
content and extract payment for every conceivable use.
Though in many ways this opinion was good news for GSU, I
think it is unfortunate that in 2009, after the lawsuit, was filed GSU changed
its-reserves policy. The threat of such legislation makes many universities scared and unwilling to assert their full rights as non-profit educational
institutions to use copyrighted materially under fair use. By being overly cautious
and acquiescing to the unreasonable demands of publishers we risk giving these
rights away entirely.
