In a highly anticipated decision, a federal court in Atlanta gave Georgia State University (GSU) a solid, although not complete victory in its fair use defense of its course web and electronic library reserve programs. The university had been sued by a coalition of publishers who alleged that GSU’s practices amounted to “massive” copyright infringement and had sought a permanent injunction that could have severely limited the scanning of copyrighted documents by academic institutions for teaching purposes. In its long-awaited, 350-page opinion, the court found that GSU’s copying for educational purposes were entitled to strong fair use protection, although that protection was subject to certain limits.
The lawsuit was filed in 2008, however, the issues raised by the lawsuit go back much further. As part of the negotiations that led to the Copyright Act of 1976, concerns were raised about copying of book chapters and journal articles for classroom instruction. The Fair Use doctrine, outlined in Section 107 of the Act, broadly addressed those concerns by including “teaching” and the use of “multiple copies for classroom use” as potential fair uses. Legislative negotiators, including representatives from publishers and academic users, also developed the “Classroom Guidelines.” While not considered “law,” the guidelines represented an attempt to provide a framework for what could be considered fair use in the classroom context.
Notwithstanding the guidelines, there continued to be disputes over copying activities for teaching, classroom, and research purposes. Two major fair use cases in the 1990s held that the creation of coursepacks by commercial copyshops for use in local universities was not fair use. A third case found that the photocopying of articles by researchers for Texaco, a commercial business, was also not fair use.
While these cases provided some additional guidance to academic teachers, researchers, and libraries, the decisions left some significant issues unaddressed. The copyshop cases depended in large part on the fact that commercial copyshops were doing the copying. What if the copying was being done by or within the university? The copying for research case was also influenced by the fact that the copying was done to benefit a commercial company. What if the copying was done to benefit a nonprofit educational institution? The GSU decision represents a major step toward addressing those issues.
The GSU case focused on the school’s practices of scanning chapters from books or articles from journals and making them available through either an electronic course reserve system operated by the GSU libraries or through course-web software, such as Blackboard. The copying and/or scanning was done by GSU librarians or other administrative staff, but the specific items to be copied were determined by the course instructor. GSU’s copyright policy required the course instructor to conduct a fair use analysis by utilizing a “fair use checklist” that assisted the instructor in determining whether the use would be allowed, or whether permission—and the payment of royalties—would be required.
The lawsuit was filed by the Cambridge and Oxford university presses, along with SAGE Publications, and focused largely on the copying of book chapters for use as supplementary reading. GSU defended itself by indicating that its copyright policy and practices were based on fair use. The court’s decision responded to this central issue by evaluating the well-known four factors to establish fair use. Those factors are the purpose and character of the use, the nature of the work being used, the amount of the work being used, and the impact on the market.
The court found most of the factors in favor of GSU, albeit with some limitations, then applied those standards to more than 75 specific claims of infringement addressed in the lawsuit. The opinion started with a strong endorsement of classroom use by nonprofit educational institutions as meeting the first factor, rejecting the publishers’ arguments that the copyshop and Texaco cases should apply.
The court also noted that most of the academic works were “informational” in nature under the second factor. Even works that encompasses the author’s “perspectives and opinions” were classed as “criticism or comment deserving of more public exposure” and more heavily protected by fair use.
On the third factor, however, the court set some limits. This factor looks at the amount of the work being used. The court determined that an academic book chapter, even chapters drafted by separate authors and compiled by an editor, constitute only a portion of the “whole” book. This was a defeat for the publishers who argued that each chapter should be considered a “whole” copyrightable work in and of itself. The court also noted that academic book chapters are often self-contained, in that they deal with a specific subject or subset of a broader subject. This supports a fair use finding in that the each chapter has a unique value to the instructor. However, the court put limits on this factor, setting a fairly specific limit of 10% of a book with less than 10 chapters, or one chapter of a book containing more than 10 chapters as being consistent with fair use.
On the fourth factor, the court made two points very clear: The first was that use of a small amount of a book is not likely to harm the market for the book. However, the court was also clear that the ability to obtain a license to digitally access a particular work was an important factor in a fair use determination. If the license for the digital version of the work is “readily available ... at a reasonable price,” then this market factor could favor the publisher.
These last two factors are the central points of the entire case. The publishers, in their post-decision press statements, have indicated that they are “pleased” that the GSU copyright policy was determined to be “flawed.” However, only five out of more than 75 specific uses of copyrighted works were considered to be infringing. The “flaws” that the court found in the policy were that it did not specifically limit the size of the excerpts to 10% or one chapter (although most instructors self-selected to those limits), and that there needed to be a check to determine if a digital license was available (which the court noted to be an exception, more than a rule).
The upshot is a new set of rules for both sides—publishers and users. Academic users know that they have strong fair use protection, but may be limited by the “one chapter/10%” rule. Publishers know that academic institutions have strong fair use protection, but if they have established a “readily available/reasonably priced” digital permissions mechanism for their individual excerpts, then their copyrights have greater value.
The decision does not end the case. Both sides will suggest terms for a final order putting the court’s decision into effect, and both sides may consider an appeal.
For More Information