Maybe you’re a professor who wants to use a chunk of copyrighted material in your course this spring. Or perhaps you’re a librarian or an academic publisher. If so, the much-followed Google Book Search settlement is not the only legal case you need to be watching. A federal case involving publishers and a state-university system, Cambridge University Press et al. v. Patton et al., should produce a ruling soon, and its stakes are high.
First, a little history. In the spring of 2008, three academic publishers, Cambridge University Press, Oxford University Press, and SAGE Publications, brought a lawsuit against several top administrators at Georgia State University. The plaintiffs claimed that the university was encouraging the unauthorized digital copying and distribution of too much copyrighted material, particularly through its ERes and uLearn systems. ERes allows students to access digital copies of course material via a password-protected Web page; uLearn is a program professors can use to distribute syllabi and reading material.
The three publishers alleged that the unauthorized copying was “pervasive, flagrant, and ongoing.” In February 2009, Georgia State put in place a revised copyright policy, including a checklist for faculty members to help them decide whether the amount of material they wanted to copy exceeded fair use.
Almost two years and many depositions later, both sides have filed briefs asking for a summary judgment in the case.
Legal briefs are a dry genre, but these tussle over some of the central questions of fair use in an academic context: How much is too much when it comes to copying rights-protected content without permission? To what extent is it the institution’s job to shepherd its professors and students through the thorny complexities of copyright?
Unfair Use
The publishers’ filing attacks what it calls the university’s “blanket presumption of ‘fair use’” in a higher-education context. The filing goes after the university’s new fair-use checklist and copyright policy, saying that it “delegates the responsibility for ensuring copyright compliance entirely to faculty unschooled in copyright law.”
The plaintiffs quote from the depositions of several Georgia State professors who acknowledge that they are not always clear on the copyright issues at stake. (“This is outside of my area of expertise,” one is quoted as saying.) The publishers want the university to use the Copyright Clearance Center’s licensing system or something like it for course materials.
The defendants take a strict we-didn’t-do-it view. Their brief argues that “any alleged unlawful reproduction, distribution, or improper use was actually done by instructors, professors, students, or library employees.”
Georgia State’s filing also argues that the new copyright policy has drastically reduced the use of the plaintiffs’ copyrighted material. It agrees with the plaintiffs that the defendants have no budget for permissions fees and that “faculty members would decline to use works like those at issue if there was an obligation to pay permissions fees.”
So on one side you have a set of major academic publishers understandably eager to protect revenue, and on the other side you have a university that says it doesn’t promote copyright infringement and doesn’t have the money to pay a lot of permissions fees. One implication (threat?) one could draw is that if professors can’t use what they need at no charge, they will probably use something else.
Complexities of Copyrights
I asked Kevin L. Smith, the scholarly-communications officer at Duke University, for his reaction. Mr. Smith helps scholars sort out copyright complexities—a function that is becoming ever more essential in university life, as this case makes very clear—and he has written about the GSU case on his blog, Scholarly Communications @ Duke.
Was Georgia State trying to shift the copyright burden onto its faculty members? “I do not think it is the intention of GSU to throw their faculty members to the copyright wolves,” Mr. Smith responded in an e-mail message. Instead, by saying that none of the officials named in the suit were directly responsible for copyright violations, the university is arguing that the suit is fundamentally flawed.
Mr. Smith was struck by the plaintiffs’ attack on the GSU copyright checklist. He pointed out that the Association of American Publishers “approved such a checklist in the redesigned copyright policies at Cornell and several other schools. The Copyright Clearance Center even offers such a checklist.” If a court rules that checklists are inappropriate, “lots of colleges and universities will be up a creek.”
I asked another Mr. Smith—Frank Smith, director of digital publishing at Cambridge University Press—about the plaintiffs’ objections to the Georgia State checklist. “Our objection is not to a checklist per se,” he told me in an e-mail message. “What we object to is asking the faculty—who by their own admission often have little or no understanding of the basics of copyright law—to take on the full responsibility of making these decisions based on a checklist. It is not a substitute for appropriate guidance by the school.” (Georgia State argues that it does provide guidance.)
What’s not clear from the plaintiffs’ filing is what fair use would look like, exactly. Duke’s Mr. Smith worries that, if the publishers go by a standard that limits excerpts of published works to no more than 1.000 words, “this would eliminate fair use, for all practical purposes, from the teaching enterprise. The result would be dramatically higher costs for students or dramatically reduced resources for teaching.”
I wondered how the publishers involved would define fair use, so I asked Cambridge’s Frank Smith about that, too. “We recognize that ‘fair use’ is to some degree subjective,” he told me. “But subjective does not mean that there is no limit.” Whole chapters of copyrighted books used without permission go past those limits, he says.
Protection for Professors?
For the moment, publishers appear unwilling to go after individual professors. “These faculty members are the same people who provide the content that university presses publish, so it would be really self-defeating,” Duke’s copyright maven, Mr. Smith, explained. “It would also be an endless game of ‘whack-a-mole.’ They would prefer a broad judgment against a university.”
In any case, the Duke expert said, a fair-use case like this deserves more than a summary judgment. This case cuts to the heart of how many professors choose course material now and how students use it. Summary judgment or not, Duke’s Mr. Smith said, “I think faculty and administrators should be very concerned.”
[Correction (3/22): Because of a production error, most of the text in this article’s section under the heading “Complexities of Copyrights” was omitted. The missing text has now been restored.]
