Moving Our Course Readings Beyond the Fair Use Exception

The course reader, that photocopied bundle of readings for a course, and now its more recent iteration, the digital e-reserves, have proven to be hot spots for “fair use” legal entanglements with copyright law in the United States. In the 1990s, the big cases were Basic Books Inc. v. Kinko’s Graphic Corporation (1991) and Princeton University Press v. Michigan Document Service (1996) which put an end to royalty-free photocopying for class use of copyrighted materials, for, the courts rule, the course readers were being sold for a profit and were competing against the original books (with 5-30% of the books being copied). And now, Cambridge University Press v. Becker (2012) arrives, with a digital-age ruling on the e-reserve.

The case began in 2008, when Cambridge University Press and Oxford University Press joined forces with SAGE Publications to file a civil suit against Georgia State University (GSU), with financial backing from the Association of American Publishers and the Copyright Clearance Center (CCC). At issue was GSU’s practice of making excerpts from books (averaging 10 percent of the book) available online in PDFs through an electronic course reserve system known as e-reserves. On May 11, 2012, Judge Orinda Evans ruled that only five of the 75 excerpts at issue constituted copyright infringement, as these five PDFs placed in GSU’s password-protected e-reserves exceeded a chapter (or 10 percent of the book, when it had fewer than 10 chapters), while digital licensing was “easily accessible, reasonably priced, and they offer excerpts in a format which is reasonably convenient for users.” (The publishers had been unable to establish that “they own valid copyrights in parts of some of the 64 works in this case,” while in other instances, the press did not make licensing readily available.)

In the notoriously tricky area of establishing what constitutes fair use, Judge Evans took a stand, drawing a “bright line” to guide others. You can use course readings under fair use, as long as they do not exceed the chapter/10 percent rule, and there is no ease of licensing, at least according to this precedent. Judge Evans also went on record expressing some sympathy for the needs of students and the rights of the public. With page charges running 10 to 25 cents, she found that “if individual students had to pay the cost of excerpts, the total of all permission payments could be significant for an individual of modest means” (ibid., 33). She also held that fair use “recognizes ‘criticism and comment’ as deserving more public exposure, not less and hence works of this nature more likely will be protected by fair use,” which some of the scholarship at issue constituted for her. These are both important issues in thinking about the value of fair use. Yet she also felt this interest in public exposure was offset by “the tremendous amount of effort and expense which goes into creating high quality works of scholarship,” without noting that the vast majority of those scholarly expenses are not born by the publisher but by public and tax-exempt institutions (ibid., 52).

James Grimmelmann, a NYU law professor, concludes in his blog post that while GSU clearly won the case, at one level, “the big winner is CCCC” as “it gains leverage against universities… and publishers who will be under much more pressure to participate in its full panoply of licenses.” The suggestion is that Cambridge University Press v. Becker (2012) will only lead to a tightening up of the author’s copyright transfer to publishers, as well as to more extensive publisher licensing agreements with CCC (which takes 15 percent of royalties and adds a $3.50 charge to each copy). After all, CCC has demonstrated through this case that it offers publishers the crucial trump card – ready online licensing of content – in reaping additional royalties for the course use of the publishers’ materials.

While the court decision expands fair use to course readers and e-reserves in the short terms, it risks further instantiating the photocopying principle in the digital age. This is the principle that materials used in a course are distinct from those available and used in the library. To see this principle carried forward into the digital age will mean that, while publishers benefit from reduced distribution costs through e-publishing, the students and university end up paying twice for the right to use the materials in a course. They contribute to the cost of the library’s copy (typically at an institutional price for the subscription or library edition, in the case of a book) as well as the course reader or e-reserves copy.

The alternative seems remarkable simple and plainly a piece with the digital era. For the growing proportion of readings used in instruction that are published in an online format, which includes most journals and an increasing number of books, why not have students use the library holding or an open access online version of the reading, either of which they are able mark up and share among their peers, much as their instructors do with their research colleagues. Providing the students with no more than a bibliographic entry offers a number of legal advantages. The principle of the library copy having many users, even simultaneous users, is already well established (despite some rearguard efforts by publishers to have digital copies treated like books, with single users and limited shelf-lives).

More than that, sending students online to the library or to open access texts holds a great pedagogical advantage. Students will begin to see their readings in the context of their use, which in the case of articles, and soon books, includes statistics about their use, links to works that have cited it, as well as to other works by the author and related readings, and hyperlinked references for checking sources (which will help refine their judgment of the work). The students will also be introduced to open access materials and begin to become aware of publicly available research and scholarship, which will only be increasing and which could serve them well in the live to come. That strikes me as more than fair use of what the universities produce in the name of knowledge.

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