Pam Samuelson & Mike Wolfe
At Authors Alliance we keep a close eye on what’s going on in fair use litigations that could have lasting effects on authors whose primary goal is create and disseminate their works with the purpose of advancing knowledge. We are not the only ones, of course, who are monitoring developments on the fair use front. In fact, tomorrow the House Judiciary Committee is holding a hearing on fair use in educational settings.
One case we’ve been following closely is the lawsuit between a group of academic publishers—Cambridge University Press, Oxford University Press, and Sage Publications—and officials of Georgia State University. The lawsuit arose because GSU policies have allowed professors to post excerpts from books for use by their students. This has included course websites where professors could upload such materials and an “E-Reserves” system run by the university library whereby professors could arrange for excerpts from works in the library’s collection to be posted online for student access.
In May 2012, a trial court judge issued a decision on the publishers’ claims as to dozens of alleged infringements and found that the overwhelming majority of them were fair use and therefore not infringements of copyright. The court reasoned as follows:
First, the nonprofit educational purpose of the use weighed in favor of fair use. Second, the factual nature of the excerpted works also favored fair use. Third, because few students would likely buy books in order to read one chapter or 10% or less of their contents, the amount copied in most instances was not excessive. Fourth, harm to the market for the books was unlikely. Yet, the court considered also whether there was an existing or likely-to-be-developed market for the online excerpts GSU professors were posting. In five instances, the court found the online course usages to be infringing where GSU professors had posted more than one chapter or 10% of the books and a digital license was readily available for the uses.
The publishers appealed the trial court’s decision. In late October 2014, the 11th Circuit Court of Appeals reversed the trial court ruling and remanded the case for further consideration of the fair use issues (PDF link). The appellate court agreed that nonprofit educational purposes favored fair use. However, it criticized the trial court for treating all of the excerpts as factual works. It recognized that some of the excerpts may have been assigned for their expressive character and not just so the students could extract facts and ideas the materials contained. The appellate court also rejected the one-chapter-or-10% rule as too rigid. Fair use needs to be assessed on a case-by-case basis, so the appellate court sent the case back to the trial court to make a judgment about whether the amount posted online in each instance was reasonable in light of the educational purpose for which it was assigned. Yet, the appellate court agreed with the trial court on the harm to the market issue. It did not find persuasive the publishers’ argument that harm existed because of the potential existence of a licensing market for these excerpts through the Copyright Clearance Center (“CCC”).
From the Authors Alliance perspective, this decision is good news. It is a nuanced, balanced opinion that leaves room for educational uses to be considered fair, while also recognizing that professors can take too much and harm the market for the work. Because the law of fair use evolves through court decisions, how courts analyze fair use issues often turns out to be much more important than the decisions themselves. This is one of those cases.
Most of what the appellate court ruled resonates with us. First and foremost, the decision firmly upheld the notion that the nonprofit, educational nature of the use of a copyrighted work weighs in favor of its being considered fair. As an organization of authors who want their works to make the greatest possible contributions to knowledge and culture, we fully support a law that encourages considered and reasonable classroom access to our works.
What constitutes reasonable classroom use is at the heart of the dispute, with the parties disagreeing about how fair use should work in the education context. On the one hand, educational fair uses are plainly important—so important that the law highlights “teaching (including multiple copies for classroom use), scholarship, [and] research” as exemplary fair use purposes. And when courts apply fair use’s four-factor test, they are first directed to consider “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” The law appears to recognize that excerpting works of authorship for purposes such as comparing diverse perspectives and conveying facts are essential to education and may often rely on the availability of fair use.
But the publishers wanted the appellate court to give considerable deference to a set of “classroom guidelines” for fair use negotiated between publishers and educators and librarians in the mid-1970s during the legislative debate that yielded the Copyright Act of 1976. The guidelines proposed benchmarks for what could be considered fair use, such as limiting unlicensed excerpts to “not more than 1,000 words or 10 percent of the work.”
The appellate court rejected the publishers’ arguments, saying that the guidelines were intended as a minimum for fair uses, not the maximum, and fair use must be considered case-by-case, keeping in mind the public interest in furthering education, not through rigid rules.
Although the publishers won their appeal in this case, they were apparently not satisfied with the outcome, for they have asked the 11th Circuit judges to rehear the case en banc (that is, before all judges of that circuit, not just the three judge panel who issued the decision). Meanwhile, representatives from both the Association of American Publishers and CCC are testifying at tomorrow’s congressional hearing and bringing with them a host of complaints regarding the GSU case and the state educational fair use. (Read the AAP testimony here and the CCC testimony here.)
The publishers liken the GSU professor postings of excerpts online to photocopied coursepacks that another appellate court eighteen years ago had found to be unfair uses. The main reason was because coursepack excerpts of books, journal articles and the like could be licensed through CCC. Now that online course websites and e-reserves are replacing coursepacks at many universities, the publishers perceive a new opportunity for CCC to take on licensing these new uses. (CCC must agree, for it is providing half of the funding for the GSU litigation. The other half is being supplied by the Association of American Publishers.)
The publishers have pointed out that the fair use provision instructs courts to consider “the effect of the use upon the potential market for or value of the copyrighted work.” The publishers who sued GSU contend that unlicensed uses of scholarly works diminish their market value out of proportion with their value to education. (The trial judge took into account that permissions income had been only a minor part of the revenue streams to these publishers. The appellate court did not disagree with the lower court on this point.)
The main thing we at Authors Alliance think the court did right in the GSU case was to uphold the importance of flexibility to fair use. Fair use is all about balancing competing interests so as to ensure that copyright best serves the public good. Not all educational uses will be considered fair, but nor do all diminutions of market value render uses unfair. Traditionally, courts consider these factors holistically, together with how much is taken from a copyrighted work and the “nature” of the copyrighted work.
Of course, this does not mean the appellate court’s analysis was flawless or that the decision was an unequivocal victory for authors who write to be read and their allies. Astute readers like copyright librarian Nancy Sims and Authors Alliance founding member Kevin Smith have criticized some aspects of the opinion, which the copyright wonks among us would do well to ponder.
But on the whole, it appears that fair use will continue to give educators flexibility with regard to how they use copyrighted materials in the classroom. Authors should take note, however, that they don’t need to rely on fair use to see their works make the greatest possible educational impact: when they make their works open access, they can affirmatively give teachers the rights they need to bring these works into the classroom without a second thought.