Jeffrey R. Galin
Florida Atlantic University
jgalin@fau.edy
The recent decision and order by Judge Evans in favor of Georgia State University is arguably the most significant fair use case to be settled since the 1976 Copyright law was enacted. Unlike the two often-cited cases that settled copyright law for course packs produced by for-profit copy centers (Basic Books, Inc. v. Kinko’s Graphics Corp. and Princeton University Press v. Michigan Document Services, Inc.), Cambridge UP v. Patton et al directly addresses the substance of fair use for non-commercial purposes and provides university libraries and professors specific methods for determining fair use for copyrighted works in online reserves. Cambridge, Oxford, and Sage publishers had sued Georgia State University representatives over faculty use of articles and chapters placed in the University online reserve and course management systems.
The outcome of this case is not surprising to those of us who have been following it carefully since it was filed in April 2008. Judge Evans has provided a set of thoughtful and measured decisions that will likely hold up under appeal. While the case has binding authority only in the state of Georgia, it has set a powerful precedent that will likely stand for years to come. This short report introduces the fundamental questions raised by the case, offers a short review of important decisions that led to its findings, and ends by noting several important additional outcomes from the penalty phase.
The fundamental question of this case is whether university faculty have the right to supplement their course reading list with online reserve articles and chapters without paying licensing fees for these materials. The ostensible answer is yes as long as the online reserve articles and chapters meet the fair use criteria within newly defined parameters as set forth in this case.
First and foremost, the judge states that all copyrighted excerpts were supplemental to the classes that used them. That is, course syllabi reflect that students were required to purchase one or more books for their courses in addition to the online readings. While the judge does not directly state that faculty should not assign exclusively readings posted in online reserve or course management system, she implies that doing so could be problematic. Since the Georgia State case does not address this issue, there is no clear determination to follow; however, it makes good common sense to avoid assigning only readings from unpaid online copies. A good rule of thumb to avoid copyright violations is to assign primary texts and supplement them with additional online unpaid readings that all meet the four factor fair use test as set forth in the Copyright Act of 1976, described below.
These fair use factors concern the character of the work (non-commercial uses that transform original uses are most favored), nature of the work (factual is favored over creative), amount used from the work (typically a chapter or equivalent is favored), and the impact that unpaid use has on the potential market for the work (unavailable licenses for digital works are most favored). Details of fair use factors are provided in GSU’s Copyright Website, a short, effective, and informative resource that also provides a Fair Use Checklist that faculty complete to make fair use decisions. This case resulted in several new qualifications in fair use case law, particularly for factors three and four.
Factor three witnessed the most significant changes. Whereas past cases dealing with fair use and copyright typically avoided identifying fixed amounts that might be considered a kind of bright line rule for the amount one can take from a book, this court drew explicit lines that, while not absolutely binding, were used to determine overuse of works. Judge Evans held that: “Where a book is not divided into chapters or contains fewer than ten chapters, unpaid copying of no more than 10% of the pages in the book is permissible under factor three” (88). This rule effectively allows for “about one chapter or its equivalent” from a given source. Where a book contains ten or more chapters, the unpaid copying of up to but no more than one chapter (or its equivalent) will be permissible under fair use factor three.” Furthermore, excerpts will be limited to “students who are enrolled in the course in question, and then only for the term of the course.” Students also must be reminded that they may not share their copies with others (95). And the excerpts must serve a “legitimate purpose in the course” and must be “tailored to accomplish that purpose.” These qualifications are the most explicit metrics ever to be articulated in case law concerning fair use, coming as close to “bright-line rules” as possible without contradicting the Supreme Court affirmation in Campbell v Acuff-Rose Music, 510 U.S. 569, 590 (1993) that each violation must be analyzed on a case-by-case basis.
The other substantial change that the Court introduced appears in factor four, impact on current and potential markets for the work. Typically, this factor will weigh against fair use when “harm is significant” (Campbell v Acuff-Rose Music, Inc.). Yet, to “prevail on factor four, Defendants have the burden of proving that any harm from the infringing use is insubstantial.” Despite this framework, Judge Evans found that the Plaintiffs also had obligations. Because the publishers claimed that “availability of licenses [ostensibly from the Copyright Clearance Center] shifts factor four fair use analysis in their favor, the judge reasoned that “it is appropriate for them to be called upon to show that CCC provided in 2009 reasonably efficient, reasonably priced, convenient access to the particular excerpts which are in question in this case” (83). This distinction became important in the case because only 13 excerpts of 46 from Oxford and Cambridge Presses were found to have licenses for digital distribution. This important point meant that 33 works were deemed to have met the burden of the fourth fair use factor because they were not able to “command permission fees” in 2009, and works were maintained in password protected systems and then removed from the systems after the term was over. Thus there was “little risk of widespread market substitution of the Defendants’ copy for the Plaintiffs’ original” (79). This case makes clear that if licenses are readily available, then factor four weighs heavily in favor of copyright holders. If licenses are not readily available, then the last factor weighs in favor of the professors who would use the works (87).
Four additional contributions of this case may be found in Judge Evans’ ruling for Declaratory relief: 1) that the “decidedly small excerpts” for factor three favor Defendants when the amount includes “the aggregate of all excerpts from a book” in a given term. In other words, faculty cannot offer one excerpt, take it down and offer another from the same sources if it amounts to more than the chapter equivalent; 2) These proceedings do not apply to “books intended solely for instruction of students” in a class, or textbooks. The judge implies that textbooks would be less likely candidates for a fair use defense. Similarly, creative works would likely fail a fair use test as well because of their higher level of protection in factor two. This means that works of fiction, poetry, drama, film, and other creative forms would be more protected and would likely require paid licenses for copies; 3) management of student access to these copyrighted materials must be strictly enforced as described in Factor four above; and 4) It may be possible to assign more than the typical chapter or 10% of a text for which there is not a digital license available. While there is technically no clear upper limit of the acceptable amount, Judge Evans states that an example of 18.5% that was found fair use in this case “likely is close to loss of fair use protection” (10). It is important to note that if the “heart of the book” has been excerpted, it could weigh against fair use, Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 565 (1985).
A few final thoughts on this case are worth mentioning. In her December 28, 2012 Order granting Defendants summary judgment on direct and vicarious copyright infringement, Judge Evans makes a definitive case against comparing online reserves with course packs from commercial copy shops, which proved decisive for the outcome of the case. (I discuss this issue further in “Online Course Reserves on Trial.”) Furthermore, Plaintiffs in this case were rebuffed numerous times for demanding remedies well beyond what was warranted to maintain effective fair use practices. The court ruled in the May 11, 2012 Judgment that while publishers have rights to publish entire edited collections, they may not claim greater protection for chapters that were originally written as separate works. She writes that the only incentive publishers have to control works in this way is “to choke out nonprofit educational use of the chapter as a fair use” (69).
Perhaps the most striking outcome of this case came in the final penalty phase. While the Plaintiffs prevailed in five cases of infringement, three from a single text, the Judge named the Defendants as the prevailing party and awarded them “reasonable attorney fees” of nearly $4 million. The message from the four years of proceedings in this case is clear. Fair use holds up against direct and unrelenting challenges. It is unlikely that publishers will sue universities over fair use practices again anytime soon. Universities and faculty must take care to manage their course materials responsibly and diligently, and the publishing industry for academic works must take note that academic uses of certain kinds of works will continue to be upheld. If the decision is not overturned, it has provided clear guidelines for online reserves and management of copyrighted works in course management software like Blackboard.
Works Cited
Cambridge University Press v. Mark P. Becker et al. Civil Action No. 1: O8-CV-1425-ODE U.S District Northern District of Georgia. 30 Sept. 2012. Justia.com. Docket 463. Web. 14 Oct. 2012.
Cambridge University Press v. Mark P. Becker et al. Civil Action No. 1: O8-CV-1425-ODE U.S District Northern District of Georgia. 10 Aug. 2012. Justia.com. Docket 441. Web. 14 Oct. 2012.
Cambridge University Press v. Mark P. Becker et al. Civil Action No. 1: O8-CV-1425-ODE U.S District Northern District of Georgia. 30 Sept. 2010. Justia.com. Docket 235. Web. 7 Mar. 2011.
Cambridge University Press v. Carl V. Patton et al. Civil Action No. 1: O8-CV-1425-ODE U.S District Northern District of Georgia. 15 Apr. 2008. Justia.com. Docket 1. Web. 11 Mar. 2011.
Copyright, Permissions and Policy. Georgia State University, 2009. Web. 14 Oct. 2012.
