This document summarizes a presentation on e-reserves and fair use given by Kenneth Crews. It discusses the Georgia State University copyright lawsuit, which found that most but not all of the university's e-reserve practices were protected by fair use. It outlines the court's analysis of the four fair use factors and how they were applied to e-reserves of book excerpts. The summary recommends universities carefully revise their e-reserve policies based on this ruling while preserving flexibility under fair use.

1. E-Reserves and Fair Use:
Copyright, Georgia State, and Your Library’s
Policy
Presented by:
ALA Editions Workshop
September 5, 2012
Kenneth D. Crews
Director, Copyright Advisory Office
Columbia University Libraries
www.copyright.columbia.edu

2. Why Fair Use?
• Teaching
• Research
• Library Services
• Website Development
• Publishing

3. Fair Use in Transition
• New court rulings
• New interpretations

4. 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

5. 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

6. Fair Use and Classroom
Copies
 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)

7. Fair Use and Classroom
Copies
 Classroom Guidelines (1976)
◦ Negotiated among Interested Parties
◦ Narrow Word-Count Limits
◦ No Anthologies
◦ No Repeat Use
 ALA Model Policy (1982)
 Proposed CONFU Guidelines (1996)

8. 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

9. The Rise of Litigation
 E-Reserves Threats and
Resolutions
◦ Resolutions at:
 Cornell, Hofstra, Syracuse,
Marquette
◦ Universities Adopted New
Policies
◦ Preserve Some Flexibility

10. 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

11. 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

12. 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

13. 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….”

14. Pausing for a Moment….
 Coming up Next:
◦ The Ruling and the Four Factors
 Open Time for Questions!

15. The Factors of Fair Use
Purpose, Nature, Amount,
Effect
 Purpose of the Use
◦ Educational uses
◦ Nonprofit education
◦ Transformative use not essential
◦ Result: “Strongly Favors” fair
use

16. 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,

17. 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

18. 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.”

19. 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.”

20. 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.

21. 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.”

22. 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.”

23. 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….”

24. The Factors of Fair Use
Consider 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.”

25. 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

26. 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.

27. 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:

28. 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?

29. 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

30. 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

31. Thank You!
Kenneth D. Crews
Copyright Advisory Office
Columbia University Libraries
www.copyright.columbia.edu
www.twitter.com/kcrews
Next Workshop:
Wednesday, October 24
“Open Access and Your
Publications”