E-Reserves and Fair Use:Copyright, Georgia State, and Your Library’sPolicy Presented by: ALA Editions Workshop September 5, 2012 Kenneth D. Crews Director, Copyright Advisory Office Columbia University Libraries www.copyright.columbia.edu
Fair Use in Transition• New court rulings• New interpretations
What is Fair Use? Exception to Rights of Owners Public Use of Copyrighted Works Defense to Infringement Claims Fair Use is Also: ◦ Flexible ◦ Adaptable ◦ Fundamental to the Growth of Knowledge
What is Fair Use? Section 107 of the Copyright Act Based on Four Factors: ◦ Purpose of the Use ◦ Nature of the Work Used ◦ Amount and Substantiality of the Portion ◦ Effect on the Market for the Work
Fair Use and ClassroomCopies In the Statute: “including multiple copies for classroom use” Still subject to the Four Factors Closest Cases: ◦ Basic Books v. Kinko’s Graphics Corp. (1991) ◦ Princeton University Press v. Michigan Document Services (1996)
Fair Use and ClassroomCopies Classroom Guidelines (1976) ◦ Negotiated among Interested Parties ◦ Narrow Word-Count Limits ◦ No Anthologies ◦ No Repeat Use ALA Model Policy (1982) Proposed CONFU Guidelines (1996)
The Rise of Litigation Copyright Cases Pending Today: ◦ UCLA (video streaming) ◦ Univ. of Michigan (HathiTrust) ◦ Google Books Litigation/Settlement ◦ Kirtsaeng v. John Wiley & Sons ◦ Threats regarding International Interlibrary Loans
The Rise of Litigation E-Reserves Threats and Resolutions ◦ Resolutions at: Cornell, Hofstra, Syracuse, Marquette ◦ Universities Adopted New Policies ◦ Preserve Some Flexibility
Georgia State University Settlement was not Forthcoming History of Policy Challenges ◦ Ongoing concerns about 1997 Policy Lawsuit filed in March 2008 ◦ Named Plaintiffs: Major Publishers ◦ Named Defendants: Individual Trustees, Officials, Employees GSU Revised its Policy in 2009
The Georgia State Lawsuit Copyright Infringement ◦ Contributory Infringement Fair Use Defense Sovereign Immunity for State Agencies Limited to Alleged Infringements under Revised 2009 GSU Policy Trial held in May and June 2011
The Court’s Ruling Issued in May 2012 Extends to 350 pages At the Core: Analysis of Fair Use Applied Findings: ◦ 75 instances of claimed infringement ◦ Only 5 instances of infringement
Final Order (August 2012) Offered a Few Clarifications Ordered GSU to revise its policy in a manner “not inconsistent with” the ruling Ordered Plaintiffs to pay Defendants’ Attorney Fees ◦ The Copyright Act: “the court may also award a reasonable attorney’s fee to the prevailing party….”
Pausing for a Moment…. Coming up Next: ◦ The Ruling and the Four Factors Open Time for Questions!
The Factors of Fair UsePurpose, Nature, Amount, Effect Purpose of the Use ◦ Educational uses ◦ Nonprofit education ◦ Transformative use not essential ◦ Result: “Strongly Favors” fair use
The Factors of Fair Use Nature of the Work ◦ Non-fiction works ◦ “Informational and educational in nature” Other Types of Works? ◦ Textbooks? ◦ Journal Articles? ◦ Audiovisual, Art, Photography, Music,
The Factors of Fair Use Amount and Substantiality of the Portion ◦ Reasonable in light of purpose ◦ Not market substitution ◦ Classroom Guidelines are too restrictive ◦ “Plaintiffs do not explain their decision to seek acceptance of the minimum standards as the maximum
The Factors of Fair Use Amount and Substantiality of the Portion “Congress intended that use of a smaller portion would be more apt to be acceptable than use of a larger portion. Taking into account the fact that this case involves only mirror- image, nontransformative uses, the amount used must be decidedly small to qualify as fair use.”
The Factors of Fair Use Amount and Substantiality of the Portion The court noted the importance of selecting whole chapters, rather than “truncated paragraphs,” to serve an educational purpose. “However, the selected excerpt must fill a demonstrated, legitimate purpose in the course curriculum and must be narrowly tailored to accomplish that purpose.”
The Factors of Fair Use Effect on the Market “In general, the larger the excerpt, the greater the potential harm; a large excerpt comes closer to substituting for the whole book.” The court found the excerpts to be “generally a small part,” around 10%, of each book, and such excerpts do not substitute for the book.
The Factors of Fair Use Effect on the Market Loss of licensing revenue is also relevant. “For loss of potential license revenue to cut against fair use, the evidence must show that licenses for excerpts of the works at issue are easily accessible, reasonably priced, and that they offer excerpts in a format which is reasonably convenient for users.”
The Factors of Fair Use Effect on the Market The court found “no persuasive evidence” that the ability to publish scholarly books “would be appreciably diminished by the modest relief from academic permissions payments which is at issue in this case.”
The Factors of Fair Use Effect on the Market This factor weighs heavily against fair use “where permissions are readily available from CCC or the publisher for a copy of a small excerpt of a copyrighted book, at a reasonable price, and in a convenient format…, and permissions are not paid….”
The Factors of Fair UseConsider Together Amount and Effect: Books with fewer than 10 chapters: ◦ May copy up to 10% of the pages Books with 10 or more chapters: ◦ May copy up to 1 chapter. Such excerpts are “decidedly small.”
The 10% Solution?Consider Together Amount and Effect: Such excerpts are “decidedly small.” Keep in mind the facts of the case: ◦ Non-fiction books ◦ Many were not licensable The court did NOT set a Cap on Copying Four Factors are the Law
Policy Implementation “Carefully monitored circumstances” Passcode for student access. Access terminates at end of semester. Students must be reminded of the limits of copyright. Students must be “prohibited by policy” from distributing the works to others.
The Fair Use Policy Written Policy ◦ Based on the Four Factors Faculty Assess with a Fair Use Checklist ◦ However, the Ruling Outlined Additional Requirements Librarians Flag Questionable Requests Current Policy:
Your Policy Options Today Option 1: Wait for Appeal Option 2: Revise only for E- Reserves ◦ Nonfiction Books? ◦ Journal Articles? ◦ Textbooks? ◦ Music and Audiovisual? ◦ Art and Photographs?
Your Policy Options Today Option 3: Revise for All Fair Use ◦ Build on the Four Factors ◦ Determine Implementation Procedures ◦ Start Information & Education Programs In Any Event: ◦ Have a Written Policy ◦ Consult with Counsel or Legal
Moving Forward Importance of Fair Use Need to Preserve all Options Fair Use Checklist or other Tool Library & Teaching Exceptions Open Access & Creative Commons Need to Respect Rights of Owners Need to Manage Our Own Copyrights
Thank You!Kenneth D. CrewsCopyright Advisory OfficeColumbia University Librarieswww.copyright.columbia.eduwww.twitter.com/kcrewsNext Workshop:Wednesday, October 24“Open Access and YourPublications”