LibraryPundit: Library Law: Copyrights, Fair Use and Copying of Copyrighted Materials for Educational Use: Course Reserves via Digital Delivery of Supplemental Materials (Electronic Reserves, E-Reserves)

What is done is not always allowed, and what is allowed is not always done.

Which copyrighted materials -- and how much of any copyrighted publication -- can be copied and used freely as "fair use" in teaching? or research? 10%? 15%? What about digital copies? and what about their distribution?

A recent landmark case involves digital supplemental online reading materials (so-called "course reserves" viz. e-reserves) at Georgia State University. That case is Cambridge University Press v. Becker (Case No. 1:08-cv-01425, N.D. of Georgia, May 11, 2012), which according to Publishers Weekly has been appealed to the 11th Circuit Court of Appeals.

The Georgia State case should serve to better define what is allowed and what is not allowed in terms of digital fair use educational copying.

Indeed, we think the case may be reversed because the laws and precedents indicate that "individual" fair use copying for educational purposes in the physical classroom (or digital classroom) is seen much differently than "mass" copying or perhaps "crowd" e-reserves, which are essentially means of avoiding existing commercial licensing markets and/or permission channels.

Where does one draw the "fair use" line in a legal landscape that allows no "bright line" rules to be drawn? Looking at the Teach Act -- which specifically DOES NOT apply to "electronic reserves, coursepacks (electronic or paper) or interlibrary loan (ILL)" -- it nevertheless provides us with some broad copyright guidelines that can be extrapolated to the Georgia State case.

As written at Stanford University Libraries:

"Georgia Harper, an attorney with the University of Texas's library system has developed an excellent checklist to determine whether you are "ready to use the TEACH Act."

Take a look at the last link and look at the checklist. Harper writes (we have excerpted this material considerably from the original):

"Copyright law provides educators with a separate set of rights in addition to fair use, to display (show) and perform (show or play) others' works in the classroom. These rights are in Section 110(1) of the Copyright Act and apply to any work, regardless of the medium....

[A]n educator may show or perform any work related to the curriculum, regardless of the medium, face-to-face in the classroom - still images, music of every kind, even movies. There are no limits and no permission required. Under 110(2), however, even as revised and expanded, the same educator would have to pare down some of those materials to show them to distant students or make them available over the Internet to face-to-face students. The audiovisual works and dramatic musical works may only be shown as clips -- "reasonable and limited portions," the Act says....

[P]utting anything online requires making a copy of it. The TEACH Act authorizes us to digitize works for use in digital distance education, but only to the extent we are authorized to use those works in Section 110(2), and so long as they are not available digitally in a format free from technological protection....

Fair use ... remains important because the in-classroom activities (even if the classroom is virtual) the TEACH Act ... covers in class performances and displays, not, for example, digital delivery of supplemental reading, viewing, or listening materials. For those activities, as well as many others, we'll need to continue to rely on fair use. Remember, however, when relying on fair use, the fair use test is sensitive to harm to markets. This means that in general, where there is an established market for permissions, there will often be a narrower scope for fair use. In practical terms, this means that where it's easy to get permission, for example, to put text materials on reserve, our reliance on fair use should be limited....

Not everyone, nor every work, is covered. Section 110(2) only applies to accredited nonprofit educational institutions. The rights granted do not extend to the use of works primarily produced or marketed for in-class use in the digital distance education market; works the instructor knows or has reason to believe were not lawfully made or acquired; or textbooks, coursepacks and other materials typically purchased by students individually." [emphasis added by LawPundit]

So now, what about that recent landmark case involving Georgia State? In that case, Cambridge University Press v. Becker, which has been appealed to the 11th Circuit Court of Appeals, the court wrote:

"Almost all of the 75 excerpts at issue were assigned as supplemental readings in graduate level or upper level undergraduate courses....

The excerpts were selected by 23 professors for 29 courses in three semesters in 2009. On average these excerpts were 10.1% of the pages in the copyrighted books....

Between 2004 and early 2009 Georgia State had a copyright policy ... which described the prohibitions on copying in the Copyright Act and the basic elements of fair use. While the policy did not state what percentage of a copyrighted work could legitimately be copied, some professors who testified at trial believed (and, the Court infers, others did as well) that copying as much as 20% of a copyrighted work was acceptable as fair use....

On February 17, 2009 the Board of Regents introduced a new copyright policy for University System of Georgia schools, including Georgia State....

.... Professors ... were told that there was no across-the-board answer ... but that under fifteen percent would likely be safe and that under ten percent would be "really safe"....

The trial evidence showed that unlicensed copying of excerpts of copyrighted books at colleges and universities is a widespread practice in the United States.... many schools' copyright policies allow more liberal unlicensed copying than does Georgia State's 2009 Copyright Policy....

Plaintiffs allege that Defendants have infringed their copyrights by allowing portions of Plaintiffs' works to be electronically distributed to users of Georgia State's electronic reserves system without obtaining permissions, in violation of the federal Copyright Act, 17 U.S.C. § 101 et seq....

Defendants contend that all of Plaintiffs' infringement claims are barred by the doctrine of fair use, pursuant to 17 U.S.C. § 107....

Defendants bear the burden of proving that each use was a fair use under the statute.

The Supreme Court's most recent and most important fair use opinion is Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)."

We are very philosophically sympathetic to the judge's holding in this case in favor of the defendants, i.e. against the publishers, but doubt on a legal basis that such wide-scale excerpting on a digital basis will be upheld upon appeal, involving as it does materials for which the mechanism for permissions exists. After all, "use" of educational materials OFTEN does not involve use of an entire textbook, but only one or more chapters, or parts of those chapters, i.e. excerpts, so that viewing a book in terms of 10%, 15% or 20% used as "fair use" is not the correct standard. E-reserves serve as a means to get around buying copyrighted books and/or getting permissions and/or licenses and harm the copyright holders accordingly. When you use maybe one PAGE of a book, that might be fair use, but not whole chapters. In such a case, the law should probably require that you have to buy the book or get permission.

Take a look at the case of academic coursepacks which are NOT "free use" in terms of the copyright laws according to cases such as:
Basic Books Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991)
American Geophysical Union v. Texaco Inc., 60 F.3d 913, 919 (2nd Circ. 1994)
Princeton Univ. v. Michigan Document Servs., 99 F.3d 1381 (6th Circ. 1996).

By the way, the applicable "fair use" statute under American law provides under 17 USC § 107 - Limitations on exclusive rights: Fair use as follows:

"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."