Putting Academic Fair Use to the Test
by George H. Pike
The Fair Use Doctrine is one of the most important, complex, and misunderstood elements of copyright law. It was born out of the principle that copyright law needs to balance the rights of authors and creators to reap a benefit from their creations with the public’s right to continue to develop new knowledge on the foundation of these creations.
The Fair Use Doctrine is also intended to function by allowing existing creative works to be used without the need to obtain permission or pay royalties, but only for those certain purposes that have been identified as serving the public good.
The Fair Use Doctrine
The Fair Use Doctrine is complex in that it is very broad yet quite narrow. The doctrine can be found at Title 17, Section 107 of the United States Code. The statute features two major elements. First, it has a broad list of purposes to which fair use may apply, including “criticism, comment, news reporting, teaching (including copies for classroom use), scholarship, or research,” but just because a proposed use fits one (or more) of these purposes does not necessarily mean it is a fair use.
The second major element is the “four factors test,” which determines if a “work in a particular case is a fair use” and serves to narrow those uses that are fair and those that are not. These four factors are 1) the purpose and character of the proposed use, 2) the nature of the copyrighted work being used, 3) the amount of the work being used, and 4) the effect of the use on the market for the copyrighted work.
In applying the factors, a proposed use does not need to meet all four factors. A proposed use is measured against each factor, which is then weighted for or against fair use. However, it is the total weight among the factors that will finally determine if a use is fair or not.
This exercise in measuring and weighing can be done between the parties in a fair use case. But if the parties can’t agree whether a use is fair, lawsuits may be filed and the court then decides. While no one wants to be sued, some benefit still exists: The court decisions about which four factors come into play actually help to narrow the scope of the fair use test and help subsequent users determine if fair use may apply to their proposed use.
Publishers Sue Georgia State University
Unfortunately, in spite of all of the court decisions on the Fair Use Doctrine and the four factors, enough gaps remain in the law that it is difficult to determine whether some uses are fair or not. One of the largest gaps is in the academic use of copies for classroom uses, particularly electronic copies. This gap may soon be filled as a result of a lawsuit filed against Georgia State University (GSU) by Cambridge University Press, Oxford University Press, and SAGE Publications.
The lawsuit, which is available online at www.publishers.org/main/presscenter/documents/gsulawsuitcomplaint.pdf, charges that GSU engaged in “systematic, widespread and unauthorized” copying of books and journals. More significantly, the lawsuit also charges that the copies were illegally distributed through GSU’s Blackboard course management software, individual faculty webpages, and the GSU library’s e-reserve system.
The lawsuit claims that GSU distributed more than 6,700 works during the spring 2008 semester through digital means. The suit also claims that the works are often compiled into “digital coursepacks” that duplicate materials the publishers sell and are used semester after semester. Finally, the publishers complain that many of the digital distribution mechanisms do not restrict access to registered students only.
The Difficulties of Establishing Academic Fair Use
The academic community has long relied on the Fair Use Doctrine to facilitate the learning process. As noted, the doctrine specifically identifies “teaching (including copies for classroom use)” as one of the purposes to which fair use applies. But because of that broad language, a significant misunderstanding has ensued about teaching and fair use. Not all academic uses are fair uses. But establishing what is fair and what is not has been difficult.
When Congress enacted the Fair Use Doctrine in 1976, it attempted to clarify fair use in teaching with the Classroom Guidelines. These guidelines established boundaries for what was considered fair use for teachers, including single copies of a book chapter, article, short story, or illustration for classroom use. The guidelines also allow the use of multiple copies of materials, but these are allowed under more limited circumstances. The use must meet a “brevity” test (generally 1,000 to 2,500 words, depending on the circumstances) and a “spontaneity” test that requires the “decision to use the work and the moment of its use” to be so close as to be unreasonable to request permission. The guidelines also prohibit copying as a substitute for anthologies, compilations, or collective works.
While these guidelines have helped teachers and scholars, they do not resolve all questions about fair use. Even the scope of the guidelines has been questioned: Are the guidelines a “floor,” meaning that all uses within the guidelines are fair, but that uses beyond the guidelines may also be fair, depending on the circumstances? Or are they a ceiling, meaning that only those uses within the guidelines are fair, and any other uses are not?
The ‘Coursepack’ Decisions
Previous court decisions have not necessarily clarified the question of fair use. Two major court decisions are mentioned in the GSU lawsuit about coursepacks, which are collections of assigned readings that a faculty member puts together from a variety of sources. A faculty member may develop and assign a coursepack instead of a textbook or in addition to a textbook. In a 1991 case involving coursepacks designed for Columbia University but with the actual copying done by Kinko’s, a court found the use not to be fair, largely because Kinko’s was a commercial business. A 1996 case involving a commercial copy shop near the University of Michigan arrived at a similar conclusion.
But neither case addressed the copying done by a university (or its library or employees) itself. In the Kinko’s case, the court said, “Classroom and library copying are viewed more sympathetically ‘since they generally involve no commercial exploitation and (have) socially useful objectives.’” In the Michigan case, the court was more cautious. The court indicated that the question of whether professors who were making their own copies was fair use was not “free from doubt,” but the court did not go any further to clear up the doubt. And neither case actually addressed the modern trend of electronic distribution of course materials.
While the use of electronic distribution methods is a central element of the GSU lawsuit, the case primarily focuses on the copying and distribution of material within a university environment. But electronic distribution lets faculty members distribute content without going to commercial providers such as FedEx Kinko’s. It also allows faculty members to make more effective (and possibly more spontaneous) decisions about what materials to distribute, as required by the guidelines. By using e-reserves, course-management platforms, or course webpages, faculty members can teach more effectively and efficiently. All of this supports fair use.
On the other hand, distribution of digital classroom materials raises the same red flags as other digital media. Once created in or converted to digital format, content can be readily used, reused, and redistributed beyond the original recipient. The digital marketplace has also led to a more robust permissions marketplace and permissions mechanisms. All of the publishers in the GSU suit have online permissions request forms or make their permissions available through the Copyright Clearance Center. This available market is central to the fourth factor of the fair use test (i.e., the effect of the use on the market for the copyrighted work) and argues against a fair use finding.
Blogging on the Case
Bloggers and other commentators have already weighed in on the case. Some noted the irony of nonprofit publishers, who get much of their content from academics, suing a nonprofit academic institution for its use of their content. Conversely, others have commented that perhaps the suit is about not-for-profit universities that are “free-riding” on the backs of the not-for-profit academic presses. Finally, others have advocated the open source movement as a solution to the problem. (That might be the case for content that was created under open source licensing but not for content with an existing copyright.)
As of mid-May, GSU has not formally answered the lawsuit, and a decision would not be expected for several months. Interestingly, the lawsuit does not request GSU to pay money damages for infringement (except for the publishers’ attorneys fees). Instead, the publishers ask the court to declare that GSU’s practices are not fair use and to order GSU to stop the copying in question.
This may make a decision more likely because GSU does not need to settle the case to avoid a large judgment. While GSU may not be thrilled about the lawsuit, a decision—in either direction—could add some much-needed clarity to the Fair Use Doctrine.