Fair Use and Educational Non-Profits
In April 2008 3 publishers brought a suit against Georgia State University for their use of copywritten content claiming the university went well beyond fair use provisions in itʼs distribution of e-reserve holdings for students.
In assessing the use of e-reserves by Georgia State the judge considered Section 107 of the U.S. Copyright Act which describes fair use along 4 axes.
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the 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.
In the decision, the Judge weighed the educational use and impact on the potential market/ value fairly evenly and found the use to be more beneficial in an educational setting than effecting the market potential of said texts. This ruling is not merely a “if you can pay for it, you should” decision. The judge is saying that students should have open access to sections of material that are deemed important to their understanding of a topic or course of study and the limits sought by the publishing companies would effectively rule that no chapters would be eligible under fair use.
The judge found that a 10% limit, whether a single author book or edited text, is allowed to be used over the course of multiple semesters and years and conversely the judge also finds that licensing for digital copies of works and individual chapters was not readily available, although Georgia State pays reproduction permissions for photocopied works, their main method of distribution was/is digital and there was no permission fee collection for digital copies. Further more the publishing companies could not provide their own proof of ownership and certificates that proved transfer of copyright ownership were not allowed as evidence.
It seems as is Georgia State slipped the bullet on these two particular points and publishing companies will be quickly digitizing their holdings and making new holdings available digitally nearly instantly they are available in print as to make this a mute point in the future. It seems that publishing companies will also be increasing the diligence with which they record their holdings prior to making them available for licensing by academic and research institutions.
The e-reserve system also terminates access for students at the end of the semester which also provided a degree of leeway for the University rather than providing digitized copies that students are able to save permanently. The Publishing companies regularly cite the 4th clause and the implication that copyright infringement will lessen the desire of people to become authors and of authors to publish their works. The publishers claimed that GSU’s use of sections of work, generally less than 10%, lessened the sustainability of the publishing industry’s ability to release academic works. Although understandable this remains to be seen as publishers have taken a reactionary stance on the digital use of any parts of a published work. They have asked for the most draconian measures, which have not generally applied to print and essentially want to disallow reproduction in part for non-profit and academic use. Whgile Judge Evans stated that permission fees are not a substantial part of the Publishers revenue, she dismissed this argument as “glib” (pg 84).
Further more the Judge sets out a mandate for publishers and institutions alike.
If publishers do not license in a way that facilitates reasonable educational use in the digital environment, the fourth factor will, she seems to be saying, cease to favor them.
As interpreted on the Duke university Library Blog. As someone who works in a school i hope that this encourgaes publishers to provide much more comprehensive, flexible and accessible titles. I feel that companies like Inkling are at the forefront of accessibility but Kindle, iBooks and even Kno are making inroads on features such as offering single chapters, providing equivalent ebooks with matching sections and pages, providing enhanced content and flexible ownership models. Although ebooks differ slightly from the course reserve model that GSU utilizes we have many upper level elective courses that can benefit from this ruling and allow us to continue to create and provide course readers within the limits of Fair Use.
If you have any questions about fair use check out Standford page on Fair Use, Copyright and Public Domain. This is a great guide for librarians and an opportunity to talk with your students and peers about the changing landscape of Intellectual Property.