Fair Use and the Digital Campus: Court Says University Doesn’t Need Permission from Publishers to Give Students Course Packs Via E-Reserve System

by Holland & Knight LLP
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Classroom interests and publishing house interests often conflict with respect to access to educational content. Educational institutions (among others) support open or low-cost access to this content, citing the value of academic freedom, the benefits of broadly disseminating ideas and the real or perceived complexities of obtaining copyright permissions. Publishers support restrictions on and payment-based access to this content, and say quality content will likely disappear if authors and publishers are not appropriately compensated for their efforts.

Courts and policymakers balance these competing interests through the copyright doctrine of "fair use." Under a traditional paper-based fair use analysis, students and institutions are required to obtain permissions and pay royalties for copyright-protected materials included in course packs, for example. However, a recent decision in Cambridge University Press et al. v. Patton et al., in the U.S. District Court for the Northern District of Georgia, suggests that this approach may not apply with respect to digital course packs provided via e-reserves.

University Provides "Open" E-Reserve Access to Academic Texts

In Cambridge University Press, a coalition of academic publishers — Cambridge University Press, SAGE Publications and Oxford University Press — (the publishers) filed a copyright infringement lawsuit against Georgia State University (the university) claiming that the university permitted (or encouraged) faculty to infringe the copyrights in more than 6,700 works by making these works available through the university's e-reserve system and website. The publishers alleged that the university's e-reserve system amounted to "systematic, widespread, and unauthorized copying and distribution of a vast amount of copyrighted works" for students in hundreds of courses.

As noted by the court, the university allowed professors to choose excerpts from academic texts and to have the school library upload those selections onto the e-reserves system, where they were made available at no charge to students. These excerpts were often full chapters from academic texts.

The publishers sought injunctive relief, specifically a change in the university's e-reserve policies and practices.1 As a defense, the university asserted that its actions were permissible under the fair use doctrine.

New Fair Use Rules for E-Reserves

Approximately one year after a 15-day bench trial, in a 350-page decision, Judge Orinda Evans ruled in favor of the university on its fair use defense. Judge Evans focused the analysis on the doctrine of fair use. Under U.S. copyright law, the fair use doctrine allows limited use of copyrighted material without acquiring permission from the copyright holder.

The Copyright Act lists the following factors to be evaluated in determining whether use of a copyrighted work is a permitted fair use:

  1. The purpose and character of the use, including whether such use is "transformative," of a commercial nature or is for nonprofit educational purposes. (Uses in nonprofit educational institutions are more likely to be fair use than works used for commercial purposes, but not all educational uses are fair use.)
  2. The nature of the copyrighted work. (Reproducing factual works is more likely to be fair use than reproducing creative works.)
  3. The amount and significance of the portion used in relation to the entire work. (Reproducing smaller portions of a work is more likely to be fair use than large or essentials portions.)
  4. The impact of the use upon the potential market for or value of the copyrighted work. (Uses that have no or little market impact are more likely to be fair than those that interfere with potential markets.)

In considering the "amount and significance" factor, the court opted not to use the Classroom Distribution Guidelines of the Copyright Office.2 These guidelines generally instruct educators concerning basic conditions that allow them to determine whether their proposed use of materials constitutes "fair use." Some examples include limiting e-reserve readings to only a small portion of the total assigned readings for one course; limiting access to students enrolled in the class; and hosting the readings on a secure, password-protected server. Instead, the court elected to create its own guidelines for assessing the permissible level of copying, holding that: (1) if a book contains fewer than 10 chapters, it is permissible to copy no more than 10 percent of the entire work (including indexes and table of contents); and (2) if the book contains more than 10 chapters, it is permissible to copy up to one full chapter.3

The court's consideration of the "effect of the use upon the potential market for or value of the copyrighted work" was also noteworthy. Judge Evans found that only a photocopy license for paper-based course packs was available for the works that were the subject of the lawsuit. She concluded that, because the university could not purchase a license to the materials in digital form, the university's e-reserves did not threaten the digital market for the works. Again, the court essentially accepted the university's fair use defense.

On September 10, 2012, the publishers filed an appeal with the U.S. Court of Appeals for the Eleventh Circuit.

Unwritten Final Chapter

If upheld, the Cambridge University Press ruling will represent a significant change in the publisher-classroom relationship. Under the decision, a defendant is able to circumvent permission requirements commonplace in the print realm by choosing to offer the materials in digital form, through e-reserves and under the court's guidelines. Academic publishers, educational institutions and faculty are well advised to watch developments as the courts continue to work to balance the relationship between the publishing house and the classroom against the backdrop of the digital revolution.  


Notes

1Money damages were not at issue in the case. Under the doctrine of state sovereign immunity, the publishers could only seek injunctive relief against the university, a state institution. 

2 http://www.copyright.gov/circs/circ21.pdf

3 This rule created additional complexity, and controversy, because many of the works at issue were books where each chapter was a standalone copyrighted work by a different author.

To ensure compliance with Treasury Regulations (31 CFR Part 10, §10.35), we inform you that any tax advice contained in this correspondence was not intended or written by us to be used, and cannot be used by you or anyone else, for the purpose of avoiding penalties imposed by the Internal Revenue Code.

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