FAIR USE AND E-RESERVES

Fair Use and E-Reserves: The Case Against Georgia State University

Holly H. Stiegel

Completed as partial fulfillment of the requirements for the

Master of Library and Information Science Capstone

Valdosta State University

July 23, 2011

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Abstract

In 2008 three academic publishers, Cambridge University Press, Oxford University Press, and SAGE Publications filed a suit claiming copyright infringement against Georgia State University. Due to the state institutions sovereign immunity, the plaintiffs could only seek injunctive relief, but a ruling in their favor could provide considerable monetary rewards in the future with increased use of permission fees and decreased assertion of fair use. Georgia State is accused of flagrant and on-going copying and distribution of copyrighted materials using electronic reserves, and using an extremely liberal interpretation of fair use as it applies to nonprofit educational institutions. This paper discusses the transition from paper coursepacks to electronic reserves, the old and new policies instituted by the Board of Regents of the University System of Georgia, and current efforts of the American Research Libraries to produce an updated set of guidelines for fair use in the digital age. Keywords: fair use, copyright, publishers & publishing, electronic reserve, universities & colleges, Georgia State University, Association of American Publishers, Association of College & Research Libraries

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Fair Use and E-Reserves: The Case Against Georgia State University

Introduction Electronic copying and scanning of copyright-protected works for library reserve systems and distance learning are uninterpreted areas of the law which may be addressed by the Supreme Court or future revisions of the copyright law. In this statement Smith (2011, para. 5) pinpoints a key issue that has frustrated and confused college and university instructors, librarians, and students for years. Fineberg (2009) echoes this concern that the lack of legal or professional mandates, leaves open the possibility of charges of copyright infringement (p. 238). Library reserve systems, commonly called electronic reserves (e-reserves) are used to make material accessible for both on-campus and distance learners. E-reserves are rapidly replacing the traditional paper-based coursepack; coursepacks are mini-anthologies of material assembled by instructors for additional course reading, copied and sold to students through the campus bookstore (Albanese, 2007). Using e-reserves, librarians post journal articles and audiovisual (A/V) materials that are requested by instructors, and students can view or download the content at their convenience. In addition to scanned materials, libraries are increasingly licensing digital versions of journals and A/V resources. Licensed digital resources that include the publishers permission to post the material on e-reserves do not require additional license fees; reasonable use of the e-reserve material is protected against claims of copyright infringement. Librarians, however, may be asked to copy

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or scan non-licensed copyright-protected works for placement in e-reserves. To determine what kind and how much material may be placed in e-reserves, instructors or librarians must review whether the material is excluded from copyright infringement by applying the four factors of fair use in section 107 of the Copyright Act of 1976 (http://www.copyright.gov/title17/92 chap1.html#107). In reviewing the four factors, a balance of interests must be struck between users and copyright owners (ACRL, 2003). The four factors are: (1) the purpose and character of the use, including whether

such use is of a commercial nature or is for nonprofit educational purposes; (2) (3) the nature of the copyrighted work; the amount and substantiality of the portion used in relation

to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value

of the copyrighted work (Harris, 2009, p 129).

Background Fineberg (2009) explains that in traditional face-to-face classes, most students purchase a textbook for core course content. Instructors often require supplemental readings, e.g., a chapter from a separate text or articles from current periodicals. Historically these materials were copied and assembled in coursepacks, and then sold to each student. Included in the price of each text and coursepack was a license or permission fee paid to the copyright holder (usually the publisher).

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The Internet and digital age has made it possible for increasing numbers of students to attend distance education classes (Albanese, 2010, Fineberg, 2009). To communicate with students, instructors have embraced online learning management systems (LMS) like Blackboard or Moodle to post syllabi, assignments, host discussion boards, and present material in a variety of ways to accommodate different learning styles (Talab, 2008). Students still purchase textbooks, but materials which used to be included in a physical coursepack are now posted on LMS or on library websites using electronic reserves (e-reserves). Students can read, view, or listen to material anytime, anywhere (Fineberg, 2009). Concomitant with the ease and increased use of both LMS and e-reserves has been the dramatic increase in the cost of textbooks and coursepacks. Dames (2008) points out that mergers and acquisitions in academic publishing have decreased the number of suppliers while demand for information has increased. The economics of supply and demand has led to price hikes that are passed along to budget-strapped libraries and/or students. Despite, or perhaps because of, increased prices publisher revenue from textbooks and coursepacks has declined in recent years (Bazerman, 2008, Howard, 2008). Sales analyses revealed several possible reasons for the decline: a depressed economy, discount textbook sales, and a proliferation of websites offering pirated versions of textbooks (P. J. Givler, qtd. in Howard, 2008, para. 8). In response, several university presses began allocating resources to trawl the web in an effort to mount a digital defense against copyright infringements (D. Ireland, qtd. in Howard, 2008, para. 13). Another reason for the decline was thought to be due to coursepack materials that are posted on e-reserves at colleges and universities (Albanese, 2007). Prior to the 1991 New York

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U. S. District Courts decision in Basic Books, Inc. v. Kinkos Graphics Corporation (Stanford, n.d.), students could easily pool their resources to buy one coursepack, and then have multiple copies made at a commercial printer. While these actions were primarily taken to save money, the effect was to circumvent copyright law and deprive a rights-holder a royalty. The savings realized by each student greatly outweighed the individual risk associated with being caught and prosecuted. After the Kinkos decision, more institutions began using e-reserves for coursepack materials. The content of e-reserves was usually password protected, behind firewalls, and inaccessible to publishers. In 2001, AAP president Patricia Schroeder suggested that libraries were responsible for removing bread from the proverbial publishers table (Dames, 2008, p. 16); the type and amount of material posted constituted copyright infringement (and a significant loss of revenue from coursepack permission fees). Since there are no codified standards for copying and scanning materials for e-reserves, a continuum of practices has developed at educational institutions. On one end are those that always ask permission and pay license fees before posting material on e-reserves. There is no exercise of fair use. There is no balance between copyright holders rights and individuals rights to build on the works and add to the body of human knowledge (Hoffmann, 2005, p 3); rights holders (publishers) receive all the benefits. At the opposite end of the continuum are institutions that almost never seek permission from license holders (L. N. Gassaway, qtd. in Foster, 2008, para. 3). Heavy reliance on fair use reverses the balance and allows for liberal, free use of copyrighted materials.

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In a subsequent AAP survey of e-reserve policies at 103 institutions in 23 states the Association of American Publishers (AAP, 2011) uncovered evidence of massive amounts of ereserve copying at some University of California campuses (Thatcher, 2010, p. 54). The ereserves included entire journals and book chapters. This led to further investigations of educational institutions including Georgia State University (GSU). Its e-reserves were not password protected at the time and the University System of Georgias (USG) liberal interpretation of fair use came under scrutiny. An AAP cease-and-desist letter accusing GSU of copyright infringement (Foster, 2008) was ignored. A metaphorical red flag was waved in the publishers faces. The publishers charged.

The Case of Cambridge University Press v. Patton, et al. Parry and Howard (2011) report that in 2008 Oxford University Press, Cambridge University Press and SAGE Publications joined together to file a lawsuit against officials at GSU claiming there had been systematic, widespread, and unauthorized copying and distribution of a vast amount of copyrighted works (What Theyre Fighting About, para. 1). Litigation expenses of the three academic publishers were subsidized by the Copyright Clearance Center (CCC) and the AAP. It was the first-ever suit filed over e-reserve practices (Albanese, 2008). The plaintiffs sought injunctive relief that would hold the university accountable for every copy made or shared on campus or on its computers, grant the publishers access to the universitys computers to assure compliance, limit the amount of materials instructors could share with students, and require that a list of all resources placed on e-reserve be reported to the publishers.

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In response the USG Board of Regents made a dramatic and unilateral change to its copyright policy in 2009 because, as Thatcher (2010) asserts, once the (Georgia) state attorneys became involved, it was determined that the (old) policy was indefensible in court (p. 55). The policy had been based on University of Georgia Law School copyright expert L. Ray Patterson. His theory made the distinction between using a work for personal use, i.e., the Constitution prohibits copyright from being used to inhibit a users efforts to learn and use of the copyright which is the proper subject of fair useand pertains to the use by a competitor in another publication (p. 55). Patterson asserts: Since no publication is involved in the use of a work included in a coursepack or posted on an e-reserve systemthere can be no infringementno matter how much material is duplicated. (qtd. in Thatcher, 2010, p. 55) The USG emended website (http://www.usg.edu/copyright/) now includes an explanation of copyright in general, the four factors which help determine fair use, and guidelines for ereserves. The policy states instructors must complete a Fair Use Checklist for each e-reserve request if an instructor determines that use of the materials falls under the fair use exception. A citation to the original work and copyright notice is required. Both LMS and e-reserves require passwords for instructors and students enrolled in the course; contents will be deleted at the end of a semester. Reserves librarians will check to see if the requested materials are licensed to the institution, and will provide direct links where feasible.

FAIR USE AND E-RESERVES Despite implementing these changes, and a ruling by the court that copyright

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infringements alleged to have occurred prior to the new policy were now moot, requests for summary judgments have been denied and the suit continues (Thatcher, 2010). Smith, Shulenburger, and Salo (Rodriguez, 2011) contend that regardless of the judges ruling in the GSU case, a ruling that will likely be appealed, more scholarly authors and academic institutions will explore open-access (OA) publishing. Publishers should fear a backlash (Rodriguez, 2011, para. 36) if the judge grants the plaintiffs injunction as currently worded: the application of fair use would be eviscerated, the cost of education would rise (even as fewer resources would be available), and librarians would spend their time monitoring copy machines instead of teaching bibliographic literacy (Rodriguez, 2011). Library budgets can no longer absorb publishers price increases; can no longer provide unlimited journal selections. Fister (qtd. in Rodriguez, 2011, para. 34), another advocate for OA, hopes for a liberation bibliographybroad, unfettered access to scholarly material. A ruling is expected sometime later this year and may help answer the often asked question: How much is too much when it comes to copying rights-protected content without permission? (Howard, 2010, para. 5).

Existing and Future Guidelines If instructors and librarians look to their institutions copyright policies for guidance, institutions can look to the American Library Association (ALA) and its divisions for guidance. Was the GSU policy radically different than the policy espoused by the ALA?

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After the Technology, Education, and Copyright Harmonization (TEACH) Act passed in 2002 the Association of College and Research Libraries (ACRL, a division of the ALA), posted a white paper on the application of fair use for institutions that were adopting e-reserves (ACRL, 2003). Its authors noted that an increasing number of e-resources were being licensed. As later iterated by Harris (2009), librarians negotiating these contracts were strongly encouraged to include the right to use the licensed materials in e-reserves. Both acquisitions and reserves librarians were advised to be familiar with license terms to prevent duplicate payment of permission fees. The ACRL acknowledged that institutional policies for the use of non-licensed, copyrighted print, digital or digitized materials would vary depending on available technology, human resources and budget constraints. The statement urged those responsible for approving ereserve materials to understand applicable statutory exemptions including the fair use four-factor test. Librarians were encouraged to balance their own interests with the copyright owners interests (ACRL, 2003, para. 8). For librarians who might be uncomfortable applying fair use, the authors referred readers to a section of the Copyright Act (1976, 504(c)(2)) that provided special protection for employees of nonprofit libraries and educational institutions who act in good faith when applying fair use standards. The ACRL statement concluded that the Copyright Act of 1976 demonstrates Congressional acknowledgement of the importance of fair use and the importance of our using it! (ACRL,2003, para. 13). GSU policies would seem reasonable given the italicized clarion call. Seven years later, in 2010 the Association of Research Libraries (ARL) began a threeyear, three-part study to understand and address academic and research librarians resistance to fully utilizing the doctrine of fair use. The purpose is to develop a set of best practices that will

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offer a reliable method for librarians to apply fair use guidelines. In the first phase Butler (2010) interviewed 65 librarians and discovered a wide range of interpretations and practices used to mitigate fair use concerns, findings that are analogous to data presented in Crews (2009) report. Some librarians imposed arbitrary quantitative limits but could not explain the rationale behind the guidelines. Many institutions placed full responsibility on their instructors, with various degrees of copyright education, to obtain permission or determine fair use. The second and third phases are scheduled through 2013 and include round-table discussions with librarians who will develop a, and then outreach and promotion efforts to encourage adoption by academic institutions.

Opportunities for Librarians Future institutional policies and guidelines may place the responsibility for following copyright laws directly on instructors but the ACRL Research Planning and Review Committee (Conway, et al., 2010) sees the need to provide value-added scholarly communications and intellectual property services as one of the top ten trends in academic libraries (p 289). With growing interest in both institutional repositories and open source publishing, there is a need for librarians who understand the fundamentals of copyright law and can educate instructors and students in the rights and exceptions for both authors and users of copyrighted content. There is a need for librarians who are willing, ready, and able to fight to use the full scope of codified copyright exceptions (Dames, 2008, p. 16).

FAIR USE AND E-RESERVES Conclusion

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The interdependent equilibrium between authors, universities, and publishers becomes imbalanced when one entity sues another. In this case maintaining publisher revenues comes at the expense of the heart of scholarship, the creation, preservation, and distribution of knowledge (Vaidthyananthan, qtd. in Rodriguez, 2011, para. 18). It is hoped that the court ruling will maintain the balance between protecting authors rights and users rights, and that asserting fair use will not become superannuated.

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A., A. (2010) Both sides angle for victory in e-reserve case. Publishers Weekly 257(11), 9. Albanese, A. R. (2007). Down with e-reserves. Library Journal 132(16) 36-38. Albanese, A. R. (2008). Georgia State sued over e-reserves. Library Journal 133(9), 16-17. Albanese, A. R. (2008) Georgia State answers e-reserve lawsuit. Library Journal 133(13), 18. Albanese, A. R. (2010). A failure to communicate. Publishers Weekly 257(23), 26-30. Association of American Publishers (2011). E-reserves. Retrieved from: http://www.publishers.org/GSU/ereservesqanda/ Association of College & Research Libraries (2003). Statement on fair use and electronic reserves. Retrieved from: http://www.ala.org/ala/mgrps/divs/acrl/ publications/whitepapers/statementfair.cfm Bazerman, C., Blakesley, D., Palmquist, M., & Russell, D. (2008). Open access book publishing in writing studies: A case study. First Monday 13(1). Retrieved from: http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/2088/1920 Butler, B. (2010). Challenges in employing fair use in academic and research libraries. Research Library Issues 273, 17-25. Conway, L. S., Downing, K., Du, Y., Goda, D., Jackson, M., Johnson, R., Salisbury, L. (2010). 2010 top trends in academic libraries. College & Research Libraries News 71(6), 286-292.

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Copyright Act of 1976 504(c)(2). Remedies for infringement: Damages and profits. Retrieved from: http://www.copyright.gov/title17/92chap5.html#504 Crews, K. D. (2009). Expert report of Kenneth D. Crews, J.D., Ph.D. Retrieved from: http://www.scribd.com/doc/22479172/Crews-Expert-Report Dames, K. M. (2008). Making a case for copyright officers. Information Today 25(7), 16. Fineberg, T. (2009). Copyright and course management systems. Libri 59(4), 238-247. Foster, A. L. (2008). How a lawsuit over electronic reserves could affect colleges. The Chronicle of Higher Education 54(36), 15. Harris, L. E. (2009). Licensing digital content: A practical guide for librarians (2nd ed.). Chicago, IL: American Library Association. Hoffmann, G. M. (2005). Copyright in cyberspace 2: Questions and answers for librarians. New York: Neal-Schuman Publishers. Howard, J. (2008). Textbook sales drop, and university presses search for reasons. The Chronicle of Higher Education 55(4), 10. Howard, J. (2010). In court, a university and publishers spar over fair use of course materials. Chronicle of Higher Education (March 14). Retrieved from: http://www.lexisnexis.com.proxygsuval1.galileo.usg.edu/ hottopics/ lnacademic/?sfi=AC00NBGenSrch&csi=171267&shr=t Parry, M. & Howard, J. (2011). Two universities under the legal gun: Publishers take on Georgia State University while video producers sue UCLA. The Chronicle of Higher Education.

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Retrieved from: http://www.lexisnexis.com.proxygsuval1.galileo.usg.edu/hottopics/ lnacademic/?sfi=AC00NBGenSrch&csi=171267&shr=t Rodriguez, J. (2011). Whats at stake in the Georgia State copyright case. Media Issues. Retrieved from: http://mediaissues.org/2011/06/02/whats-at-stake-in-the-georgia-statecopyright-case/ Smith, K. (2011, May 31). Access to copyrighted materials on reserve. Retrieved from: http://library.duke.edu/research/reserves/policy.html Stanford University Libraries and Academic Information Resources. (n.d.). Basic Books, Inc. v. Kinko's Graphics Corporation. 758 F. Supp. 1522. Retrieved from: http://fairuse.stanford.edu/primary_materials/cases/c758FSupp1522.html Talab, R. (2008). Using digital materials in online courses: A cautionary tale of Georgia State University. Tech Trends 52(4), 30-32. Thatcher, S. (2010). From the university pressesGeorgia State and (un)fair use: A rebuttal to Kenneth Crews. Against the Grain 22(1), 54-58. University System of Georgia (2011). Policy on the use of copyrighted works in education and research. USG Copyright Policy. Retrieved from: http://www.usg.edu/copyright/