Publishers Seek to Limit Universities' Fair Use

This past spring, Georgia State University was sued for copyright infringement by three massive academic publishing houses, Sage Press, Cambridge University Press and Oxford University Press. The case, which has received woefully little attention from the free culture arena, has a number of worrying implications for both universities, specifically, and fair use, in general. This Friday, I had the opportunity to attend a panel discussion at the Georgetown University Library regarding the case where Kenny Crews, Roger Skalbeck and Anthony Moretti discussed the case and it’s implications for higher education; here are some observations and commentary:

The Case at Hand

The lawsuit centers around Georgia State’s use of electronic reserves to make available digital copies of course readings. The case specifically approaches book chapters, though e-reserves are used at numerous universities for assigned readings of various types. By providing digital copies of course materials, students are able to access a wider range of information in the convenience that digital makes possible. While the publishers assert that Georgia State is part of a “systematic, widespread and unauthorized copying and distribution of a vast amount of copyrighted works,” the university claims that fair use clearly protects their policy.

As you may know, fair use permits the use of copyright “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” It rests upon a fuzzy four factor test which will be the center of this case’s copyright dispute:

  1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

As is evident in the statute, Congress wanted to give wide breadth to education, but the panelists at Friday’s event warned that nonprofit education, such as Georgia State, should not been seen as a “trump card” because a judge may weigh the other factors heavier than the first. So, although the first factor (in addition to the above quoted preamble) clearly support Georgia State’s use of multiple copies for education, the other factors will be addressed, as well.

Factors 3 and 4 will be the focus of the complainants. Although Georgia State is only using portions of the copyrighted works, the suit alleges that “In many cases, the distributed excerpts constitute the very heart of the work at issue.” Although a professor may only have posted a single chapter from a lengthy book, Harper & Row v. Nation Enterprises determined that if the used portion is “the heart of the work,” it can infringe, regardless of it’s length.

Finally, because course packs have been decreed a legitimate market, Georgia State is being accused of infringing that potential market of the publishers. However, for many courses, e-reserves are used because purchasing the numerous books used would be prohibitively high for many students. That is, the market doesn’t actually exist because students would be incapable of buying what is placed on e-reserve.

What’s At Stake; What To Do

Because Georgia State qualifies for soveriegn immunity, a lawsuit would only seek injunctive relief instead of damages. The implication is that e-reserves and fair use would be severely limited as a legal fact, even if Georgia State did not have to pay anything in response. In the words of Duke’s Kevin Smith,

“this is an attempt to enforce judicially a “pay-per-use” model of content distribution. The real irony is that it is justified as an attempt to remedy a “free-rider” problem — the claim that universities are appropriating the work of publishers and authors without just compensation. This claim is patently absurd, given the amount of money university libraries invest in published resources, but it is downright offensive when the real issue is clarified. Publishers here are themselves the free-riders, obtaining a huge amount of academic content from the universities and their faculty without compensation. The GSU complaint cites as an irony the fact that one of the professors who is cited as infringing the copyright of Sage Publishing has himself published three articles in Sage journals. The gall of the man! Nowhere is it mentioned that he was required to give up those articles without payment for the privilege of publishing with a company that is now suing his employer to recover even more money for those freely donated articles.”

The pay-per-use model is another example of the publishers seeking to grab more value from universities. Libraries spend millions of dollars purchasing and licensing material from academic publishers. In a physical world, the first-sale doctrine (through library lending and resale) mitigate “pay-per-use” but in a digital world of ubiquitous copying, the publishers want to squeeze more money out of schools.

So what can we do? Here are some ideas, but feel free to add yours in the comments:

  1. Educate yourself and school. Raise awareness about fair use and its importance to scholarship and education on campus. Both faculty and students should learn about copyright and fair use. All universities have policies relating to faculty fair use and copyright; what’s yours? Georgia State says that no more than 20% should be used, but what is your school’s policy?
  2. Encourage permissive options like public domain and Creative Commons. Faculty and administration need not worry about copyright lawsuits if they are using documents, images and video that is freely available without payment.
  3. Support open educational resources. Encourage faculty to publish their work in open access journals. The fewer copyright bullies to sue universities, the fewer chilling effects on education. Open access is the (legal) offense against lawsuits like this one.
  4. Get creative: Harvard’s Free Culture chapter created the Thesis Repository to both raise awareness about and quantity of open access scholarship.

As Students for Free Culture embarks upon an ambitious project to open up institutions of higher education, we should keep in mind that universities, and especially their libraries, tend to agree with the principles of access to information, scholarly sharing and creativity. However, they are often held back by actors such as Sage Press who seek to bottle up knowledge. As students we have an important role to play in educating about and assisting the creation of a free culture at universities.

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