“Fair Use” – A Nightmare Averted?

photo by Horia Varlan via flickr

So, you want to post some readings on your course website. What about copyright law? You’ve probably heard the term “fair use,” but what exactly does that mean? Unsurprisingly, educators and publishers have had rather different interpretations of that nebulous term. However, a landmark case ruling could offer some clarity in this murky world. Cambridge University Press vs. Becker, brought about by Cambridge University Press, Oxford University Press, and Sage Publications, claimed that Georgia State University’s online reserves practices violated “fair use.” Kevin Smith, Duke University’s copyright blogger has claimed that a victory for the publishers would have been “a nightmare scenario for higher education,” for not only was the publishers’ reading of “fair use” extremely restricted, its enforcement would have compelled universities to impose vast bureaucracies and invasive regulations to ensure compliance.

Thankfully, that has not come to pass. But are our course websites completely out of the woods?

The short story is that, in the face of potentially far more prohibitive measures, CUP v Becker ruled that, in most cases, one chapter in a book of ten or more chapters (and 10% of a book with fewer than ten) is generally considered the limits of “fair use.” So, if you’re looking for a rough benchmark, there you go. But, of course, it’s not really THAT simple.

A little bit of historical background: According to the Copyright Act of 1976, people can make “fair use” of a restricted amount of copyrighted material “for purposes such as criticism, comment… teaching (including multiple copies for classroom use), scholarship or research.” The Act also allows people to copy articles or book excerpts for their own academic work. College and university libraries have long since interpreted this to allow closed reserves. These days, however, many students expect something they can download and (in theory at least) read on their computers. Furthermore, closed reserves do not solve issues of economic inequality in the classroom, where students who can afford to purchase the materials do so, and those of less financial means are compelled to proverbially huddle around a single copy. Putting course materials online, on the other hand, creates a level playing field (not to mention making those readings distinctly more convenient to access for your students).

In the age of digital copies, however, many publishers are increasingly worried that new technology could reduce the number of actual books sold. Some more far-minded publishers have been moving to supplement their sales income with revenue from selling reproduction permissions, either through their own agencies or via a service such as the Copyright Clearance Center, which sells licenses to reproduce copyrighted material to academic institutions. But this has been more of the exception than the rule – most academic publishers have been extremely hesitant, to say the least, about making this transition. Both OUP and CUP (2 of the 3 plaintiffs), for instance, provide almost no such option for their materials. Like in so many other industries, they are attempting to stuff the genie back into the bottle and preserve a business model that new technology has rendered obsolete.

This attempted genie stuffing would have had a chilling effect on posting course material online. For instance, the plaintiffs in CUP vs. Becker alleged that their copyright had been violated by the posting online of a single chapter from a fifteen-chapter volume (1083 pages) of their Cambridge History of China (in a course that required students to buy five books). As Michael Les Benedict has written in his in-depth analysis of this ruling (and speaking directly to historians but applicable to a broad swath of academia), “if the presses had won their case, the most typical uses historians make of e-reserves in their classes, would have been ruled infringements of copyright, beyond the scope of ‘fair use’ of copyrighted materials for educational purposes.” This would have been a “free use” that was neither free nor useful.

But, luckily, the judge did not rule in favor of the plaintiff. In fact, Judge Orinda Evans rejected 70 out of 75 individual claims of copyright violations by the publishers against Georgia State University. While this is cause for relief (as an educator if not a publishing writer), don’t put on your party hats quite yet. There’s a lot of ambiguity in how Judge Evans interpreted the four factors which the Copyright Act establishes to determine “fair use.”

1: The “character” of the use. The ruling states that educational purposes strongly supports Fair Use. So far so good.

2: “The nature of the work being used.” This is more problematic. The judge ruled that there is a greater scope for Fair Use if the work is factual, or non-fictional. “Creative” works have a more restricted Fair Use application. For a lot of humanities and social sciences, this also supports Fair Use. Tough luck, Literature, I suppose – and for a wider swath of educators who use “creative” texts in the classroom.

3: How much of the work is being copied. Here are the brass tacks: According to the ruling, for works with ten chapters or more, the use of one chapter is fair. Under ten chapters, 10% of the total pages (including bibliography, index, etc.) is fair. On one hand, this could be worse. But 10% of a monograph can really come fast. Compilations, that is, multi-authored works, are to be considered as one text.

4: How the use could affect the potential market or value of the copyrighted work. The ruling is weighed against against Fair Use if it would result in a financial loss to the holders of the copyright. This is where things get tricky. After all, how is the average professor or TF supposed to know or quantify these criteria? However, Judge Evans qualified this factor, stating that it would significantly favor publishers, AS LONG AS a license in an appropriate format is both readily available and at an appropriate price. In other words, if the publisher does not have a reasonably priced (and accessible) licensed digital version, then the scales tip back to Fair Use. And as things stand now, most publishing houses don’t provide such an option.

Potentially then, this could help encourage publishers to develop reasonable digital license practices. James Grimmelman sums up the winners and losers of this case: Georgia State, mostly winner. Publishers, mostly loser. But the really significant winner could very well be the Copyright Clearance Center, or other license management companies that might follow in its wake. And while our course websites might breath some proverbial relief, we should be wary about complacently putting a vast amount of material online without any recompense going to the copyright holders. Furthermore, appeals are certain – so watch this space.

Regardless, this case has resulted in a great deal of bad blood between two co-dependent circles, academia and academic publishers. Rather than have a court impose a solution from outside, it would behoove both parties to work out some common ground. Reasonably priced digital licensing, what we might call the Spotify solution, could point the way.

This post was written by Stephen A. Walsh.

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