Georgia State, In Brief:
Almost a year after the trial ended in Cambridge University Press, et al v. Becker, et al (more commonly referred to as the Georgia State case), we have received a judgment from Federal Judge Orinda Evans. The issue at stake was the placement of materials, still under copyright, on Georgia State University’s (GSU) e-reserves/course management system. The Plaintiffs, included Cambridge, Oxford University Press and Sage Publications, brought suit alleging copyright infringement and Georgia State responded that the use was fair under United States Copyright Law. The case experienced many twists and turns, but a decision finally came out on May 11, 2012.
Judge Evans’ 350 page decision shows a painstakingly thorough analysis. I do not want to rehash any of the insights provided in very well written entries that have appeared online over the last week or so – please see the ARL’s Issue Brief by Brandon Butler, and blogs by Kevin Smith and James Grimmelman. What I would like to do is talk about the highlights/interesting findings and to try to answer the “ok, now what?” questions.
Interesting findings for Libraries:
- Judge Evans found GSU’s 2009 Copyright Policy to be a good faith effort to comply with U.S. Copyright law. She did reveal come criticism in the lack of stated allowable percentages that complied with the Fair Use standard.
- Of the 74 instances of alleged infringement submitted for review, Judge Evans only found infringement in 5 (or 6% of cases were found to be infringing uses).
- Under her application of Fair Use, she found that:
On Factors 1 and 2 (purpose and character of the use and the nature of the copyrighted work), libraries will prevail almost every time
On Factor 3 (amount and substantiality of the portion used)- she stated libraries will prevail if “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…” (P.88). If the book is over ten chapters then no more than one chapter is permissible. On Repeated use- the court rejected the notion that professors cannot use the same unlicensed material from semester to semester.
On Factor 4 (effect on use on the potential market)- this factor favors content producers, but if no reasonably priced or readily available version (exactly what is being assigned) exists libraries can prevail/their ability to rely on fair use increases
- De Minimus determination – The court did not review any alleged infringement instances where it was shown that no student had opened or viewed the material. Essentially arguing that since the material was not viewed, there was no real infringement.
What does this all mean?
I’ve been asked, several times, “what, if anything, does this mean for us?” “Do we need to change anything/everything?” “Should we change our policies?”
For universities not in the 11th Circuit, where this decision came down, the ruling can be found to be persuasive but not binding for other jurisdictions. Additionally, it’s important to note that this case may be appealed. Both the plaintiffs and the defendants may present reasons to appeal the decision. The publishers may determine that they have grounds for appeal based on what they may consider erroneous legal rationale used by the Judge Evans. For GSU, the judge found infringement in five cases, so they may consider appealing to argue the point that the uses were fair in those cases as well.
There are many positive things for libraries to take away from the decision. However, as others have pointed out, Judge Evans’ suggested percentage/on chapter provision may cause more harm than good, with the creation of an artificial delineation to an area that has operated without concrete boundaries.
Regarding the question of what libraries should do now, it would be a good idea to review current policy and procedures in regards to copyright law and fair use. While a complete overhaul may not be in order, it may be a good idea to tweak and refine some policies and procedures. It will also be a good idea to conduct seminars and presentations for faculty, staff and students on copyright basics and what fair use means for them as users and creators of scholarly work.
Is there a concrete victory for libraries in this case? Arguably yes. But many issues remain that will have to be navigated, negotiated and re-negotiated. These negotiations will have to happen between and among libraries, faculty, and publishers. It remains to be seen whether or not easier days are ahead.