May 15, 2012
A Quick Take On the Georgia State e-Reserve Case
I’ve read the decision in the case of Cambridge University Press et al. v. Becker, et al. The case is essentially about whether placing items on the e-reserve system at Georgia State University violates the copyright laws. Judge Orinda D. Evans conducted a methodical analysis of the copyright laws, compared it to the plaintiff publishers’ rights in their works, the four factors that underpins the fair use defense, and the conduct of the faculty and library at Georgia State University in utilizing these works. As the judge stated at the very end of the opinion “The truth is that fair use principles are notoriously difficult to apply.” That hard truth did not stop Judge Evans in any event.
The plaintiff publishers brought claims of infringement in 99 works. Georgia State was found to infringe in the use of 5 of the titles. Whatever the damages may be in this case will have to wait for another proceeding in the case. The judge weighed the first factor involving the purpose and character of the use and noted that Georgia State is a non-profit educational institution. That helped distinguish the case from other litigation where commercial course pack aggregators had been found liable.
The second factor invokes the nature of the copyrighted work. Judge Evans found this factor weighed in favor of Georgia State as the excerpts from books were informational non-fiction in nature rather than purely creative. Judge Evans cited Supreme Court precedent for the proposition that some works deserved more protection than others. The more creative the work, the more protection it deserved, along with the converse, less creative publications are farther from the core of intended copyright protection.
The third factor, the amount and substantiality of the portion used compared to the original work, was a bit more difficult. Factors the Court considered included the purpose of the use, the amount taken, and whether the use had any impact on the market for the works. This is where the classroom guidelines came into play. The source of these is the memorialization of an agreement between academics and publishers as to the amount of a work that may be used without permission. They are contained in an appendix to a House Report which is part of the legislative history to the 1976 Copyright Act.
The publishers characterized the limitations in the report as a bright-line maximum allowable limit for use. The Court rejected this, noting that the Guidelines represented a minimum statement of quantitative copying, citing statements in the body of the Report to that effect. The next part addressed the parties disputing what defines the book. The publishers wanted only the text where Georgia State argued for the entire work. The Court agreed with Georgia State on this one. The Court reserved stating what amount of use was allowable until it considered the fourth factor, covering the impact on the market.
The judge framed this as market substitution. The plaintiffs argued that the ability to license the works for academic use through the Copyright Clearance Center places the analysis of the fourth factor in their favor. The Court did not agree completely with this. She cited shortcomings in the evidence that licenses for some of the works were even available to Georgia State. At the same time she noted that unpaid use of the copyrighted work did have some effect on the value of the copyright to its owner. Judge Evans declined to take an absolute position on market substitution. It depends on a lot of factors, including the conduct of other actors in the same circumstances.
The publishers argued that a reduction in licensing payments could cripple them financially, possibly causing them to go out of business. She called that position “glib.” Judge Evans stated:
In fact, permissions income is not a significant percentage of Plaintiffs' overall revenues. Plaintiffs' 2009 rights and permissions income from all sources (including corporate and other commercial uses) was nine-tenths of one percent of Plaintiffs' average 2009 revenues of $169,268,000. Plaintiffs' 2009 permissions income relating only to academic book and journal permissions (APS and ECCS) was only .0024--less than one quarter of one percent—of revenues. Plaintiffs' 2009 permissions income from ECCS was only .0005 of overall revenues--five one-hundredths of one percent—of revenues.
* * * *
In summary, there is no persuasive evidence that Plaintiffs' ability to publish high quality scholarly books would be appreciably diminished by the modest relief from academic permissions payments which is at issue in this case. There certainly is no evidence that a modest reduction would impact the desire or the ability of academic authors to publish new works. Making small free excerpts available to students would further the spread of knowledge.
The Court summarized the effect of the four factors and then issued its own guidelines as to what is acceptable use by a non-profit educational institution:
Where a book is not divided into chapters or contains fewer than ten chapters, unpaid copying of no more than 10% of the pages in the book is permissible under factor three. The pages are counted as previously set forth in this Order. In practical effect, this will allow copying of about one chapter or its equivalent. Where a book contains ten or more chapters, the unpaid copying of up to but no more than one chapter (or its equivalent) will be permissible under fair use factor three. Excerpts which fall within these limits are decidedly small, and allowable as such under factor three. Access shall be limited only to the students who are enrolled in the course in question, and then only for the term of the course. Students must be reminded of the limitations of the copyright laws and must be prohibited by policy from distributing copies to others. The chapter or other excerpt must fill a demonstrated, legitimate purpose in the course curriculum and must be narrowly tailored to accomplish that purpose. Where the foregoing limitations are met factor three will favor fair use, i.e., will favor Defendants. Otherwise factor three will favor Plaintiffs.
The rest of the opinion analyzes each book and excerpt used compared to the Court’s view of the fair use test. The Court also concludes that the University Copyright policy in place encouraged violation in some situations by not identifying restrictions such as using only one chapter rather than multiple excerpts from a single work.
The outcome of this case is not cut and dried for fair use of educational materials by libraries by any means. First of all, it applies to non-profit academic libraries in the Northern District of Georgia. Other courts confronted with the same issue may adopt Judge Evan’s reasoning given that there aren’t many opinions on the subject. I can’t believe, though, that there will be a proliferation of them. The opinion states that the plaintiff publishers were recruited by the Copyright Clearance Center and the Association of American Publishers. The two organizations are fronting the costs of the litigation.
I assume this was perceived as a test case to limit the reach of fair use in academics. The rejection of the Classroom Guidelines as a maximum must have come as a major disappointment to the plaintiffs. Libraries, on the other hand, should compare their copyright policies to the discussion of the Georgia State policy. Georgia State did argue that their policy was conservative compared to other universities. Judge Evans basically said that being in the mainstream or less had nothing to do with compliance with the copyright laws. The quick analysis of the opinion suggests that anything more than a chapter or 10% of the book will require a license fee. Once the loose ends in the case are wrapped up it will be on to the appellate court.
The Association for Research Libraries has its own issue brief on the case, with links to other analyses. [MG]