A federal court decision handed down on May 11, 2012, may have an impact on what instructors can provide their students in the form of electronic reserves. The case is formally known as Cambridge University Press et al v. Patton et al. The plaintiffs, in addition to Cambridge University Press, were Oxford University Press and Sage Publications, and they were supported by the three-hundred member Association of American Publishers and the Copyright Clearance Center, which describes itself as “rights licensing experts” and “global rights broker for the world’s most sought after materials.” The respondents to the suit were representatives of Georgia State University, and the complaint was that faculty at Georgia State had—in number, length, and frequency—systematically exceeded the bounds of fair use in depositing readings in the e-reserves maintained by GSU’s library system. The judge in the case, however, found infringement of fair use in only five of the ninety-nine instances of misuse alleged by the plaintiffs. The 350-page decision not only cleared Georgia State of most of the charges of infringement but also outlined criteria for determining fair use that seem, on balance, favorable toward depositing copyrighted material in e-reserves for educational purposes. For example, it may be allowable to place on reserve up to ten percent of a text, or, alternately, up to one chapter of a book. It may also be permissible to place material on electronic reserve for more than one semester in a row.
The ninety-nine charges of infringement were whittled down to five in a three-stage process. First, the judge ruled that in some instances the publishers had failed to demonstrate that they owned the copyrights to the material in question. Second, in the legal equivalent to the no-harm, no-foul rule, the judge determined that the publishers were not injured if no students had in fact accessed material that had been placed on reserve. The judge then applied the four-pronged fair use test to the remaining instances of alleged infringement. The fact that the reserves were being used for an educational (1) purpose and that the (2) nature of the material was informative led the judge to conclude that the e-reserves were not infringing in those regards. In terms of (3) amount and substantiality of the resource posted, the judge favored the ten percent or one chapter approach mentioned above (ten percent for books consisting of nine or fewer chapters; one chapter for resources of ten or more chapters). For the fourth factor, whether placing a resource on e-reserve would have a negative (4) impact on sales, the decision went in favor of Georgia State whenever a digital version of the resource was not available for licensing. As one commenter observed, “no digital license meant an instant win for Georgia State.”
The full text of the Georgia State University e-reserve decision is available here:
Cambridge University Press et al v. Patton et al. Justia.com. Justia, 11 May 2012. Web. 15 May 2012.
Analyses of the decision and its implications, as well as a response from the Association of American Publishers (which includes links to statements from the three publishers who were parties to the suit) are available at the sites listed below:
Butler, Brandon C. “Issue Brief: GSU Fair Use Decision Recap and Implications.” Arl.org. Association of Research Libraries, 15 May 2012. Web. 15 May 2012.
Grimmelmann, James. “Inside the Georgia State Opinion.” Laboratorium.net. The Laboratorium, 13 May 2012. Web. 13 May 2012.
Howard, Jennifer. “Long-Awaited Ruling in Copyright Case Mostly Favors Georgia State U.” Chronicle.com. The Chronicle of Higher Education, 13 May 2012. Web. 13 May 2012.
Howard, Jennifer. “Publishers and Georgia State See Broad Implications in Copyright Ruling.” Chronicle.com. The Chronicle of Higher Education, 14 May 2012. Web. 14 May 2012.
Jaschik, Scott. “Some Leeway, Some Limits.” Insidehighered.com. Inside Higher Ed. 14 May 2012. Web. 14 May 2012.
Kolowich, Steve. “E-Reservations.” Insidehighereducation.com. Inside Higher Education. 15 May 2012. Web. 15 May 2012.
Smith, Kevin. “The GSU Decision—Not and Easy Road for Anyone.” Blogs.library.duke.edu. Scholarly Communications @ Duke, 12 May, 2012. Web. 12 May 2012.
Sporkin, Andi. “AAP Statement of on Georgia State University Lawsuit Ruling.” Publishers.org. Association of American Publishers, 14 May 2012. Web. 15 May 2012.
This column is sponsored by the Intellectual Property Committee of the CCCC and the by CCCC-Intellectual Property Caucus. The IP Caucus maintains a mailing list. If you would like to receive notices of programs sponsored by the Caucus or of opportunities to submit articles either to this column or to the annual report on intellectual property issues, please contact kgainer@radford.edu.
