The Chronicle Review

What's at Stake in the Georgia State Copyright Case

May 30, 2011

A closely watched trial in federal court in Atlanta, Cambridge University Press et al. v. Patton et al., is pitting faculty, libraries, and publishers against one another in a case that could clarify the nature of copyright and define the meaning of fair use in the digital age. Under copyright law, the doctrine of fair use allows some reproduction of copyrighted material, with a classroom exemption permitting an unspecified amount to be reproduced for educational purposes.

At issue before the court is the practice of putting class readings on electronic reserve (and, by extension, on faculty Web sites). Cambridge, Oxford University Press, and SAGE Publications, with support from the Association of American Publishers and the Copyright Clearance Center, are suing four administrators at Georgia State University. But the publishers more broadly allege that the university (which, under "state sovereign immunity," cannot be prosecuted in federal court) has enabled its staff and students to claim what amounts to a blanket exemption to copyright law through an overly lenient definition of the classroom exemption. The plaintiffs are asking for an injunction to stop university personnel from making material available on e-reserve without paying licensing fees. A decision is expected in several weeks. The Chronicle asked experts in scholarly communications what the case may mean for the future:

Kevin L. Smith

Director of scholarly communications, Duke University

The stakes in this case ought, in my opinion, to be considered from two slightly different perspectives.

First, from the perspective of teaching faculty, the potential consequences depend very much on the ultimate decision in the case. If Georgia State prevails, and even if it loses and the injunction the judge issues is narrowly tailored to address those places, if any, where it deviates from accepted practice, then little will really change. Most colleges have reasonable fair-use policies and practices, which could easily survive a carefully written judgment against Georgia State. But if the publishers who brought the case succeed in getting something close to the proposed injunction they have requested, there will be catastrophic consequences. Either higher education will get much more expensive, or options for exposing students to diverse materials will become extremely limited.

The other important perspective that the case will probably affect, regardless of the final outcome, is that of the scholarly author. For a great many years, scholars have given the works they produce to academic publishers, without remuneration, in the belief that the scholarly-communication system was mutually beneficial. Authors receive benefits for their work from their universities and participate in a system in which all the financial gain is reaped by publishers, because the authors assume that all parties are working for the advancement of scholarship and education.

As it becomes clear that the three publishers who have initiated the lawsuit in search of higher profits are willing to attack the very heart of the system by which scholars live, academic authors will rightly feel betrayed. The plaintiffs are, after all, asking the judge to fundamentally change the copyright rules for higher education. If the rules in the proposed injunction were widely accepted, fair use in this field of endeavor, supposedly favored, would actually be more restricted than in any other activity. Yet the works at issue in the lawsuit are mostly written by scholars for the use of other scholars and students. If those uses become impossible or exponentially more expensive, which today is the same thing, academic authors will need to reconsider whether they are receiving sufficient benefits for the free labor they contribute to scholarly publishing.

The open digital environment already offers substantial advantages to scholars who are seeking greater reach and impact for their work. As the benefits of traditional publication decline because of some publishers' fearful attack on fair use, the benefits of open access will loom larger. Universities, too, are likely to discover that the status quo is unsustainable and move more quickly to adapt promotion-and-tenure processes to the new reality of direct online publication. So the real impact of the Georgia State lawsuit, regardless of which side prevails, may be to hasten the open-access revolution in scholarship.

Peter J. Givler

Executive director, Association of American University Presses

The basic issue is simple: whether or not an academic institution, Georgia State University, should be permitted to create digital course packs consisting of excerpts from copyrighted works and to make those course packs available to students without permission from or payment to copyright holders.

A few key points to consider about this case:

  • Despite the fact that the academic presses involved in the suit are, by university-press standards, large, it is perhaps the smaller university presses that have the most to lose in a world where digital course packs, provided gratis and without compensation to authors or publishers, replace book sales and permissions income. As the director of just such a press points out in the most recent issue of Against the Grain, which offers news about the publishing world, it is not textbooks, per se, on which university presses rely, but rather colleges' adoptions of a relatively few original research monographs that finance the investment and risk inherent in publishing new and unproven books. And it is precisely those works around which much of the Georgia State suit revolves, as it is significant portions of those works that the university appears to be distributing digitally at no charge.
  • This case involves a single university that has steadfastly refused to engage in any meaningful way with publishers about their concerns over copyright and digital course packs. It is not symptomatic of a broader conflict between libraries and academic publishers, nor does the remedial action requested by the publishers indicate a desire for a broad clampdown on genuine fair use. It is a case focused on claims of repeated misuse of copyrighted material by one university, Georgia State.
  • Whereas course packs in print are typically created by campus copy shops, digital course packs are sensibly the domain of academic libraries. But these libraries shouldn't be asked to bear the costs of these course packs. A course pack serves exactly the same purpose as a textbook, and, similarly, students are its consumers. Libraries might consider whether to charge students for this increasingly important and central service. As custom-textbook publishing grows by leaps and bounds (and what is a course pack—in digital or print form—if not a custom textbook?), and as the mandates of libraries and presses increasingly overlap, perhaps the provision of digital course packs could provide libraries with a valuable and relatively straightforward means of supplementing their increasingly strapped budgets.

Siva Vaidhyanathan

Professor of media studies and law, University of Virginia

Congress in 1976, in a rare bolt of wisdom, specifically exempted "multiple copies for classroom use" from copyright infringement. That's right. Congress did not exempt "portions of copies for classroom use." It did not exempt "one-time, minimal numbers of copies for classroom use." It did not exempt "1,000 words for classroom use." It exempted "multiple copies for classroom use."

Today 1976 seems like ancient times. Oddly, some publishers now want us to use obsolete fair-use guidelines that they drew up then, in coalition with librarians and university representatives, that were never meant to be maximum standards, only suggestions to interpret the law. The guidelines themselves demanded flexibility. And fair use itself is legislated to be flexible, exercised on a case-by-case basis.

The publishers have asked a federal court hearing a major academic copyright case to issue an injunction requiring professors to adhere to those standards as absolute limits. Professors would be allowed to distribute just 1,000 words of a document without payment or permission. Under such an injunction, fair use becomes a joke, the explicit intent of Congress would be rendered irrelevant, and thousands of years of academic practice would be voided. If the publishers prevail, I would fear for my job.

I wouldn't fear that I would lose my job. I would fear that I could not do my job. Soon after such an injunction, my university would issue a memo instructing us how to adhere to the severe restrictions that the court would have put on teaching. Fear that would shoot through university counsels' offices would generate a panic not seen since the Red Scare. Every professor, adjunct, and graduate student would be a potential source of a major lawsuit. Universities would deputize librarians as copyright cops in an effort to monitor and report everything we did in class. We would spend hundreds of hours each September in huge meetings with lawyers, trying to figure out how to comply with the ridiculous and unrealistic limitations that the court would have put, as stipulated in the injunction being requested (1,000 words!), on Georgia State.

Most of us would probably just figure out a way around the restrictions. Instead of using legitimate means of distributing content, like e-reserves, we might just make our own PDF's of chapters and articles and attach them to e-mails to students. Or we might suggest that students, not being employees of the university, could make the copies and accomplish the distribution themselves. In 2005, The Harvard Crimson reported, the cost of Robert Putnam's course packet for Government 90qa, Community in America, was $464.50. If his students did not pool their money and purchase a single copy of the course packet, I would guess, they were not smart enough to get into Harvard in the first place.

Since the previous landmark copyright suit over classroom copying and course packets, Basic Books Inc. v. Kinko's Graphics Corporation, in 1991, copy shops have been required to submit article requests to the new Copyright Clearance Center (set up in 1978 at the suggestion of Congress and, conveniently, a key backer of the publishers' lawsuit against Georgia State). Clearances now take weeks or months, and course packets can cost hundreds of dollars. Once libraries subscribed to electronic-journal articles and we all got copiers and scanners that easily make PDF's, we found no-cost ways to do our jobs. Even if we are too dumb or risk-averse to figure out how to avoid restrictions, our students aren't.

How did this absurd situation arise? It's a familiar story of the steady infiltration of market fundamentalism into academe over the past 30 years.

Almost every act of teaching and research requires copying. Universities were invented to copy. European universities emerged in the 11th century from the network of monasteries that dotted the continent and ringed the Mediterranean. These monasteries had a core mission to preserve knowledge by copying books and manuscripts as many times as possible, ensuring preservation through redundancy.

That tradition lasted well into the late 20th century, at which point universities suddenly became more than vehicles for the creation, preservation, and distribution of knowledge. They became markets.

University presses used to be agents of the university, and were similarly insulated from the illogic of the marketplace. But again, for the past 30 years we have seen presses thrown into a commercial relationship with the very academy they both depend on and exploit. It's a sad situation. But it has roots in the same general economic predicament that has devalued and degraded so much that is public and publicly minded.

David E. Shulenburger

Senior fellow, Association of Public and Land-Grant Universities, and former executive vice chancellor and provost at the University of Kansas

The publishers' lawsuit against Georgia State is part of an undeclared war on academic fair use, and scholars should take note. This stunning money grab should serve as a wake-up call to academics; it shows that our core interest—the widest possible access to information, especially in the classroom—is in direct conflict with the interests of some of the publishers to whom we have entrusted our scholarship. Worse, the publishers claim to speak for our interests when they attack our institutions. It is past time to declare our independence by embracing new models for academic publishing.

In their arguments to the court, the publishers suggest that unless universities divert more and more of their scarce resources to licensing fees, academic writers will stop writing and scholarship will cease to exist. Indeed, by the publishers' reasoning, any use that does not involve a payment to the publishers poses a threat to scholarship. Fair use, it seems, is inherently the enemy of academic authors. That absurd view ignores the real incentives for scholarly writing.

While the copyright system supposes that authors are motivated to write by hope of profit, any academic knows the situation is much more complicated. The rewards for most academic authors, even the pecuniary rewards, come almost entirely from nonroyalty sources: in the form of tenure, prestige, and success on the academic job market, not to mention the gratification of contributing to scholarly discourse. Rare is the academic author who considers likely royalty payments before embarking on a research project.

At the same time, every academic author is a voracious user of scholarly work. The production of one piece of scholarship can require access to hundreds of previous works. Policies that stop the flow of information are much more damaging to scholarship than are policies that encourage access; a few extra dollars in your annual royalty check is scant compensation for living in a world where nearly every act of research or pedagogy involves a tax paid to publishers and their representatives (e.g., the Copyright Clearance Center).

There is another way. Open access allows authors to make their work freely available on the Internet, whether by publishing with open-access journals and publishers or retaining the right to deposit their works in open-access repositories. In the words of the 2001 Budapest Open Access Initiative, an international effort, open-access publishing permits "any users to read, download, copy, distribute, print, search, or link to the full text of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose."

Copyright law gives authors a limited monopoly over access to their works, but it also empowers them to set those works free. The benefits of open access for scholarly users are enormous and self-evident, while the cost to the individual academic is negligible. And by suing Georgia State over well-established fair use, Cambridge University Press, Oxford University Press, and SAGE Publications, with the help of the Copyright Clearance Center, have added a new benefit for scholarly users: the chance to disassociate yourself from aggressive attempts to monetize scholarship.

Kate Douglas Torrey

Director, University of North Carolina Press

The Georgia State University case turns on fundamental principles of copyright law—both its purpose (to promote new ideas by providing authors and publishers a fair return on their labors, in order to assure the public's access to knowledge) and its critically important fair-use exemptions. Copyright law is format-neutral; over the years, it has proven flexible enough to accommodate the arrival of photocopiers, read/write cassette recorders, sampling, and other musical forms. At its core, this case asks whether a course pack delivered electronically differs from one printed on paper.

It is no coincidence that two of the plaintiffs are not-for-profit university presses and the third is an academic publisher, each an important participant in the system of scholarly communication. When the suit was filed, a few librarians asked, "How could they?"—an indication of the underlying strength of the broad, interconnected educational community that we publishers, our library customers, our faculty authors, their students, and our parent institutions all inhabit. We are family. And, however reluctantly, sometimes family members end up on opposite sides in a courtroom.

In this case, since 2003 there is no evidence of Georgia State's ever having made a payment to any publisher, whether for-profit or not-for-profit, for permission to include significant portions of copyrighted material in its electronic-reserve and course-management systems. The university admits it has no budget designated to pay for digital use; further, it says it has no system to recoup costs from students.

It is important to note that Georgia State pays permissions to use copyrighted material in traditional course packs, and that other universities pay for digital use. So what does Georgia State claim is different? The purpose is the same: education. The permissions mechanism is the same: The Copyright Clearance Center, which most universities utilize, has an easy-to-use system. The CCC's fees are reasonable and often the same for print and electronic materials. The only difference is format—educational material delivered online instead of on paper. In essence, Georgia State claims that this difference constitutes fair use.

For years the university has asserted that interpretation, expanding fair use beyond recognition, and has ignored copyright principles, by appropriating the digital use of thousands and thousands of pages of copyrighted material. But fair use, an essential component of copyright law, provides limited, enumerated exceptions to the rights of copyright owners, not an avenue for wholesale avoidance of the law. In fact, both the exercise of fair use and the counterbalancing requirement to secure and pay permissions are cornerstones of scholarly communication, and both are vigorously supported by university presses.

Because no reasonable person could expect a spontaneous reversal of the university's practice, the question is, "How could publishers not take action against such a deeply embedded policy?" As faculty, students, libraries, universities, and university-press publishers embrace an increasingly digital educational environment, the Georgia State case—and that university's misguided attempt to subvert copyright fundamentals—puts much at risk. Nothing less than the interdependent educational ecosystem, in which widespread access for students is made possible by appropriate compensation for authors and publishers, hangs in the balance.

Dorothea Salo

Research-services librarian, University of Wisconsin at Madison

The eternal academic-librarian plaint is that faculty never question the time and money behind what librarians provide them to read and assign to their classes. For faculty, it's magic. They look for material, and lo!—it's there. They want something on e-reserve, and lo!—it turns up in courseware. They want journals, regardless of price, and lo!—those often appear (less often these days, to be sure).

Libraries have been papering over serious cracks in the economic foundations of scholarly publishing for more than a quarter-century. The cracks widen daily, as outrageous price-gouging by for-profit, multinational serials publishers (and the scholarly societies that sold out to them) force monograph publishers to fight over the last meager crumbs of library budgets. Yet save for a few indefatigable reformers, faculty have not felt enough pain and fear to question the system, nor enough outrage to force it to change. Nor are librarians blameless; by and large, we have shifted some money and asked for more to paper over more cracks. We know we cannot shift the system without a faculty alliance, and many of us remain unsure we want it to change; we, too, are accustomed to it.

What is at stake in the Georgia State lawsuit is the status quo in scholarly publishing, a status quo dependent largely on faculty's not knowing or caring about its flaws. Should a ruling come down that adds so much complication, cost, or risk to provisions about electronic reserves that institutions and their libraries no longer feel safe offering them, faculty and librarians will unite at last in shared outrage on the far shore of the Rubicon. The results of such outrage are unpredictable and may not be benign: What the Gustavus Adolphus College librarian Barbara Fister has called "liberation bibliography"—broad, unfettered access to scholarly material—would be a blessed outcome; the blind, furious dismantling of publishers with centuries of expertise, not so.

Even a ruling favorable to e-reserves may threaten another practice common among faculty members: posting their own articles to personal or professional Web sites after they have transferred copyright to publishers. I am unsure whether this complaint from the original filing is still under consideration by the court, and press coverage has been silent about it. Should the court rule this practice to be not fair use, faculty pain and fear will probably not reach the level of outrage that the destruction of e-reserves would cause, but it might well lead faculty to question or even change their opinions and behaviors and to help themselves and everyone else find, read, and share the scholarly works they produce.

The plaintiffs want to win the Georgia State case, but in my opinion they should deeply fear a backlash should the judge forbid knowledge-sharing that faculty and students believe is their due. "When I teach, it feels utterly natural to post articles etc. online for the students," tweeted Amanda French, a digital-humanities scholar, last week. Thwarting that feeling is a dangerous gambit indeed.

Brandon Butler

Director of public-policy initiatives, Association of Research Libraries

What's at stake is diminished returns to publishers and diminished access for libraries and students, because this ill-conceived litigation serves no one. It should have, and could have, been avoided.

Professors placing excerpts from library materials on reserve is a well-established practice at university libraries. It has no effect on the legitimate market for academic publications. Professors and publishers may quibble over how big a particular excerpt should be, but in no case will e-reserves become a profit center for publishers. Indeed, faculty and librarians at Georgia State have made clear that if putting material on e-reserve involved additional fees, they would largely abandon the practice. This lawsuit is a losing proposition for everyone involved: Publishers stand to gain nothing except huge legal bills (even with 50-percent financing from the Copyright Clearance Center) and resentment, while the relief they seek would deprive Georgia State of important fair-use rights.

How did this happen?

It's actually a common problem. Communities of practice that rely on the fair use of copyrighted work, from documentary filmmakers to video mash-up artists, have been encouraged for years to take an attitude of fear, uncertainty, and doubt about the extent of their rights, either by a few overzealous rights holders or by the overly risk-averse in their own ranks. Fair use, they are told, is a narrow exception, merely a defense, an arcane and confusing concept best left to lawyers and so on. Those misconceptions lead to community practice that is timid, inconsistent, and often self-defeating, despite friendly court decisions and widely held intuitions about fairness.

Rights holders are affected, too. The inconsistency and timidity of current practice makes it difficult for them to distinguish legitimate market opportunities from boondoggles like the current lawsuit against Georgia State. Many libraries rely on fair use to operate robust e-reserve systems. A clear, unified, formal statement from the academic and research-library communities, grounded in a shared understanding of both the opportunities and the limitations of fair use, could have saved the publishers a lot of time and money by showing them what their customers see as the legitimate boundaries of their market.

For over a year, I've been working with Patricia Aufderheide and Peter Jaszi, both on the faculty at American University, to formulate a code of best practices in fair use by scholars and research libraries. It has been a fascinating and painstaking process, but we have reason for optimism. Documentary filmmakers were the first success story. Before filmmakers issued their code of best practices, they labored under paralyzing uncertainty about basic issues like whether to pay license fees for short clips of copyrighted films used for criticism and commentary. That left key players unduly nervous. Insurers, who must underwrite any commercial film against the possibility of lawsuit, were especially hesitant or unwilling to insure fair uses. After the documentarians formulated their code, insurers felt comfortable underwriting films with unlicensed fair uses in them, and no longer charged extra for the perceived risk.

Rigid, outdated "guidelines" imposed by acrimonious lawsuits are no way to make fair-use policy. Instead, a clear, deliberate, and flexible statement from the key practice community—libraries—can guide users and rights holders alike toward better outcomes.