Reading & Thinking About Copyright Issues
Glynis Benbow-Niemier
The copyright case that caught my eye is Cambridge University Press et al v. Mark P. Becker et al (Georgia State University) (2008) and deals with GSU’s faculty putting digital versions of non-fiction texts on reserve in the library for their students (in the same way they might put books or articles on reserve). The three university presses (Cambridge, Oxford, and Sage) were persuaded to make the case and were funded by two companies who make their money by selling and arranging licensing agreements for university and other presses. At stake are the kinds and amounts of works faculty can put on electronic reserve in libraries for their students under Fair Use.
I read four articles about the ruling (listed at the end): I began with the article, “Publishers and Library Groups Spar in Appeal to Ruling on Electronic Course Reserves,” which appeared February 1, 2013,in the Chronicle’s Technology section. Jennifer Howard, the author, briefly outlines the history of the case and the initial ruling, and then goes on to outline the arguments in the appeal—which I will come back to. But, to understand the full case and the appeal, I had to go back and find information about the initial filing and decision.
So, this is a summary of the case more than the summary of one article. The two companies that funded the case are the Copyright Clearance Center and The Association of American Publishers. This is an important piece of information since they do not own the copyrights on works, but seek to build a market for them by connecting copyright holders (presses) with users (faculty & libraries & students). The main contention of the case, is that the practice of GSU faculty of putting electronic copies of portions of scholarly, non-fiction books on reserve amounted to creating course packs (like the Kinko’s case) and that the amounts they were putting on reserve went beyond Fair Use.
Kenneth Crews' (Columbia Copy Right Advisory Office) discussion of the case outlined the judges decisions based on the four factors used to decide fair use cases—three of which were decided in favor of GSU and its faculty. The judge found that 1)GSU is a non-profit institution; 2) the Fair Use standards explicitly state that making “multiple copies for classroom use” is allowed; 3) the numbers of pages set down in the “Classroom Guidelines” (1976) were minimums agreed between “private interest groups,” are not the law, and should not be made into maximums allowed(which was the interpretation the plaintiffs were pushing for); 4) faculty can use the same texts on reserve for more than one semester under Fair Use (this demolishes the “spur of the moment”/”inspired selection” part of Fair Use); 5) access to the reserves should be limited to the students enrolled in the course; and 6) the plaintiffs’ had to be able to prove that licenses were easily available and reasonably priced and that there would be a material impact to market value for there to be a Fair Use violation.
The judge’s rulings on the amounts of a text that can be used under Fair Use were straight forward and generous compared to the convoluted calculations recommended under the Classroom Guidelines: 10% of a book without chapters or less than 10 chapters; one chapter if a book has more than 10 chapters (it should be noted that this is for scholarly, non-fiction works and does not address fiction/poetry and other sorts of creative texts). She also left intact the “heart of text” prohibition though she said the just because an instructor might choose one chapter over another, does not automatically make that selection the “heart of the text” by default which would effectively eliminate any choices.
The appeal seeks to overturn this by arguing that faculty using online reserves is the same as creating course packs and that the judge’s decision will lead faculty to use more and more e-reserves instead of buying course packs—and this will materially impact the copyright holders and university presses who publish scholarly works.
Ms. Howard, in the piece from The Chronicle, quotes Brandon Butler, from the Association of Research Libraries:
It was established at the trial that GSU’s practices are in the main
stream, so libraries are basically already doing what publishers claim
will put them out of business, and yet Oxford University Press
reported $1-billion in sales last year, $180-million in profits. Is this
what a publisher on the verge of collapse looks like? (3, Howard)
Interestingly, one of the things I learned is that Copyright isn’t first and foremost a protection of market value or time invested in writing something—and that Fair Use can still be allowed—needs to be allowed—even if there are licenses available. Brandon Butler, in the Issue Brief discussing the judge’s ruling, states: “creativity, not effort, is what copyright is intended to protect. Fair Use promotes broad dissemination of fats and ideas, and thus should be stronger where informational material is at issue.” (3) Further along in the article, he says of the judge’s ruling:
“ . . . courts are required to consider how a proposed fair use serves or disserves the purpose of copyright, which is to encourage the creation and dissemination of creative works.” (5)
What seems important to remember from all this is that Fair Use is still evolving—and evolving slowly--the appeal was heard in 2013, but no decisions has been taken yet; Kenneth Crews sees the possibility of the case moving all the way to the Supreme Court.
Also, I didn’t realize that the four Fair Use considerations (purpose of the use; nature of work copyrighted; amount of work used; & effect on value/market potential) were developed for the courts to decide what is and isn’t Fair Use; so, while we as faculty can use them as guides, they are more about interpreting cases and the decisions are almost never decided 100% for or against sides—there is a continuum or balancing which goes into making these rulings (so, GSU’s defendants’ were seen to have won three out of the four parts of Fair Use guidelines, and the plaintiffs’ were seen to win one of the four in regard to five misused texts out of the original 99).
It seems really important to be able to put materials on reserve, above and beyond the materials we require students to purchase/read for a course, and I hope this distinction, which supports our students’ exploration of ideas and topics they might not otherwise come into contact with, is upheld in the face of commercial interests.
Sources & Links:
Butler, Brandon C. “Issue Brief: GSU Fair Use Decision Recap and Implications.” Association of Research Libraries. 15 May 2012. Web. 28 April 2014.
<http://www.arl.org/storage/documents/publications/issue-brief-gsu-decision-15may12.pdf>.
Crews, Kenneth. “Georgia State and Fair Use: Copyright on Appeal.” Columbia Copyright Advisory Office Webpage. 22 January 2013. Web. 28 April 2014.
<http://copyright.columbia.edu/copyright/2013/01/2012/georgia-state-and-fair-use-copyright-on-appeal>.
Dames, Dr. K. Matthew. “Decision Summary: Publishers v. Georgia State University” Copyright Information Blog Archives. 14 May 2012. Web. 28 April 2014. http://copyright.syr.edu/publishers-v-georgia-state/>.
Howard, Jennifer. “Publishers and Library Groups Spar in Appeal to Ruling on Electronic Course Reserves.” Chronicle for Higher Education. 1 February 2013. Web. 28 April 2014.
<http://chroncle.com/article/PublishersLibrary-Groups/136995/?cid=wc&utm_source-wc&utm_medium=en>.
Glynis Benbow-Niemier
The copyright case that caught my eye is Cambridge University Press et al v. Mark P. Becker et al (Georgia State University) (2008) and deals with GSU’s faculty putting digital versions of non-fiction texts on reserve in the library for their students (in the same way they might put books or articles on reserve). The three university presses (Cambridge, Oxford, and Sage) were persuaded to make the case and were funded by two companies who make their money by selling and arranging licensing agreements for university and other presses. At stake are the kinds and amounts of works faculty can put on electronic reserve in libraries for their students under Fair Use.
I read four articles about the ruling (listed at the end): I began with the article, “Publishers and Library Groups Spar in Appeal to Ruling on Electronic Course Reserves,” which appeared February 1, 2013,in the Chronicle’s Technology section. Jennifer Howard, the author, briefly outlines the history of the case and the initial ruling, and then goes on to outline the arguments in the appeal—which I will come back to. But, to understand the full case and the appeal, I had to go back and find information about the initial filing and decision.
So, this is a summary of the case more than the summary of one article. The two companies that funded the case are the Copyright Clearance Center and The Association of American Publishers. This is an important piece of information since they do not own the copyrights on works, but seek to build a market for them by connecting copyright holders (presses) with users (faculty & libraries & students). The main contention of the case, is that the practice of GSU faculty of putting electronic copies of portions of scholarly, non-fiction books on reserve amounted to creating course packs (like the Kinko’s case) and that the amounts they were putting on reserve went beyond Fair Use.
Kenneth Crews' (Columbia Copy Right Advisory Office) discussion of the case outlined the judges decisions based on the four factors used to decide fair use cases—three of which were decided in favor of GSU and its faculty. The judge found that 1)GSU is a non-profit institution; 2) the Fair Use standards explicitly state that making “multiple copies for classroom use” is allowed; 3) the numbers of pages set down in the “Classroom Guidelines” (1976) were minimums agreed between “private interest groups,” are not the law, and should not be made into maximums allowed(which was the interpretation the plaintiffs were pushing for); 4) faculty can use the same texts on reserve for more than one semester under Fair Use (this demolishes the “spur of the moment”/”inspired selection” part of Fair Use); 5) access to the reserves should be limited to the students enrolled in the course; and 6) the plaintiffs’ had to be able to prove that licenses were easily available and reasonably priced and that there would be a material impact to market value for there to be a Fair Use violation.
The judge’s rulings on the amounts of a text that can be used under Fair Use were straight forward and generous compared to the convoluted calculations recommended under the Classroom Guidelines: 10% of a book without chapters or less than 10 chapters; one chapter if a book has more than 10 chapters (it should be noted that this is for scholarly, non-fiction works and does not address fiction/poetry and other sorts of creative texts). She also left intact the “heart of text” prohibition though she said the just because an instructor might choose one chapter over another, does not automatically make that selection the “heart of the text” by default which would effectively eliminate any choices.
The appeal seeks to overturn this by arguing that faculty using online reserves is the same as creating course packs and that the judge’s decision will lead faculty to use more and more e-reserves instead of buying course packs—and this will materially impact the copyright holders and university presses who publish scholarly works.
Ms. Howard, in the piece from The Chronicle, quotes Brandon Butler, from the Association of Research Libraries:
It was established at the trial that GSU’s practices are in the main
stream, so libraries are basically already doing what publishers claim
will put them out of business, and yet Oxford University Press
reported $1-billion in sales last year, $180-million in profits. Is this
what a publisher on the verge of collapse looks like? (3, Howard)
Interestingly, one of the things I learned is that Copyright isn’t first and foremost a protection of market value or time invested in writing something—and that Fair Use can still be allowed—needs to be allowed—even if there are licenses available. Brandon Butler, in the Issue Brief discussing the judge’s ruling, states: “creativity, not effort, is what copyright is intended to protect. Fair Use promotes broad dissemination of fats and ideas, and thus should be stronger where informational material is at issue.” (3) Further along in the article, he says of the judge’s ruling:
“ . . . courts are required to consider how a proposed fair use serves or disserves the purpose of copyright, which is to encourage the creation and dissemination of creative works.” (5)
What seems important to remember from all this is that Fair Use is still evolving—and evolving slowly--the appeal was heard in 2013, but no decisions has been taken yet; Kenneth Crews sees the possibility of the case moving all the way to the Supreme Court.
Also, I didn’t realize that the four Fair Use considerations (purpose of the use; nature of work copyrighted; amount of work used; & effect on value/market potential) were developed for the courts to decide what is and isn’t Fair Use; so, while we as faculty can use them as guides, they are more about interpreting cases and the decisions are almost never decided 100% for or against sides—there is a continuum or balancing which goes into making these rulings (so, GSU’s defendants’ were seen to have won three out of the four parts of Fair Use guidelines, and the plaintiffs’ were seen to win one of the four in regard to five misused texts out of the original 99).
It seems really important to be able to put materials on reserve, above and beyond the materials we require students to purchase/read for a course, and I hope this distinction, which supports our students’ exploration of ideas and topics they might not otherwise come into contact with, is upheld in the face of commercial interests.
Sources & Links:
Butler, Brandon C. “Issue Brief: GSU Fair Use Decision Recap and Implications.” Association of Research Libraries. 15 May 2012. Web. 28 April 2014.
<http://www.arl.org/storage/documents/publications/issue-brief-gsu-decision-15may12.pdf>.
Crews, Kenneth. “Georgia State and Fair Use: Copyright on Appeal.” Columbia Copyright Advisory Office Webpage. 22 January 2013. Web. 28 April 2014.
<http://copyright.columbia.edu/copyright/2013/01/2012/georgia-state-and-fair-use-copyright-on-appeal>.
Dames, Dr. K. Matthew. “Decision Summary: Publishers v. Georgia State University” Copyright Information Blog Archives. 14 May 2012. Web. 28 April 2014. http://copyright.syr.edu/publishers-v-georgia-state/>.
Howard, Jennifer. “Publishers and Library Groups Spar in Appeal to Ruling on Electronic Course Reserves.” Chronicle for Higher Education. 1 February 2013. Web. 28 April 2014.
<http://chroncle.com/article/PublishersLibrary-Groups/136995/?cid=wc&utm_source-wc&utm_medium=en>.