Colleges Shouldn’t Have to Deal With Copyright Monitoring
Colleges have a big stake in the outcome of the lawsuit that three publishers, Cambridge University Press, Oxford University Press, and Sage Publications, brought against Georgia State University officials for copyright infringement. The lawsuit, now in its eighth year, challenged GSU’s policy that allowed faculty members to upload excerpts (mainly chapters) of in-copyright books for students to read and download from online course repositories.
Four
years ago, a trial court held that 70 of the 75 challenged uses were fair
uses. Two years ago, an appellate court sent the case back for a
reassessment under a revised fair-use standard. The trial court has just
recently ruled that of the 48 claims remaining in the case, only four uses,
each involving multiple chapters, infringed. The question now is, What should
be the remedy for those four infringements?
Sage
was the only publisher that prevailed at all, and it lost more infringement
claims than it won. Cambridge and Oxford came away empty-handed. Despite the
narrowness of Sage’s win, all three publishers have asked the court for a
permanent injunction that would impose many new duties on GSU and require close
monitoring of all faculty uploads to online course repositories.
This would apply not just to Sage
publications, but to every use of in-copyright books on online course websites.
The requirements would be too onerous and costly for colleges, given that such
a small percentage of uses were found to infringe on copyright.
The
publishers’ request for a very broad injunction is not really a surprise. The
plaintiffs always intended for the GSU case to establish a precedent that
publishers could use to persuade colleges to pay for digital licenses from a
company they work with, the Copyright Clearance Center.
This
collecting society has long issued licenses for photocopied course packs for
college classes. The publishers and the Copyright Clearance Center view online
course repositories as the digital equivalents of course packs. Indeed, the
clearance center and the Association of American Publishers are financing the
litigation as a test case from which all publishers would benefit if it
succeeds.
Under
the proposed injunction, GSU faculty members would first have to determine
whether digital licenses were available for excerpts they wanted to use. If so,
they would have to decide whether to license that material or determine that
uploading parts of in-copyright books would be fair use. Faculty members would
have to assess whether their uses of the relevant materials were narrowly
tailored to serve their pedagogical purposes, were not excessive in quantity,
and were not the "heart" of the book. And faculty members would have
to consider how much harm their use would cause to the publisher if other
faculty members teaching similar courses made the same uses of the book
chapter.
The proposed injunction would also
require university personnel to confirm that every excerpt uploaded to course
websites met the fair-use criteria and to keep track of information about the
book, which parts were used, the number of total pages, the sources that were
consulted to determine whether digital permissions were available, the date of
the investigation, the number of students enrolled in the course, and the name
of the professor. The university would have to maintain those records for three
years.
As
if that were not enough, the publishers want the court to require GSU to
provide them with access to the university’s online course system and to
relevant records so the publishers could confirm that the university had
complied with the record-keeping and monitoring obligations. The publishers
have asked the court to retain jurisdiction so that they could later ask it to
reopen and modify the court order concerning GSU compliance measures.
The
proposed injunction contrasts with the trial court’s 2012 injunction, which
directed GSU to change its copyright policy to conform with the court’s order
about what uses were fair and unfair, and to tell the faculty about the changed
policy. The court wisely declined to impose burdensome and expensive
record-keeping obligations on the university when first asked to do so.
Given
that the trial court found less infringement on remand than it had initially,
the new order will probably look like the one issued four years ago. Because
the court considers GSU to be the prevailing party, a narrow injunction is to
be expected. The publishers will appeal, of course. Their main challenge will
focus on the trial court’s analysis and fact-finding as to 44 uses that the
court ruled were fair.
Appellate
courts generally defer to lower-court fact-finding, especially when the
findings are as extensive as in the GSU case. As an author of book chapters
(for which I have never been paid, but which I would like students to read) and
as a faculty member who posts some in-copyright materials on course websites,
I’m rooting for GSU on the coming appeal. If the overwhelming majority of the
university’s uses were fair, it doesn’t make sense to impose substantial and
costly compliance measures on it. Colleges, students, faculty members, and
academic-book-chapter authors will win if the publishers lose once again.
Judgment | http://policynotes.arl.org/wp-content/uploads/2016/03/DKT-No.-510-Order-dated-2016_03_31.pdf
Regards
Regards
Pralhad Jadhav
Senior Manager @ Library
Khaitan & Co
Best Paper Award | Received the Best
Paper Award at TIFR-BOSLA National Conference on Future Librarianship:
Innovation for Excellence (NCFL 2016) on April 23, 2016. The title of the
paper is “Removing
Barriers to Literacy: Marrakesh VIP Treaty”
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