Getting Dizzy Over Fair Use in Higher Education

Ay, there’s the wonder of the thing.  Macavity’s not there!  -TS Eliot  

TheNumber42

And neither has been this Kat for a few weeks, due in part to a back injury that has made it difficult to sit in a chair for long periods (she is better now, but is in the market for a standing desk), and also due to her careful reading of the astonishing 350 page opinion recently delivered (after a year since trial) by Judge Orinda Evans of the Northern District Court of Georgia in the case of Cambridge University Press v. Becker et al., in which the publishers Cambridge University Press, Oxford University Press, and Sage Publications, Inc. sued a number of officials of Georgia State University in Atlanta over the University’s practice of uploading excerpts from works published by the plaintiffs to a system made available to students assigned to read those excerpts by their professors.  One of the firms representing Georgia State University has called the decision “landmark,” and even Oxford has stated publicly that the ruling was an important “first step” in clearly applying U.S. copyright law to the classroom setting.  Professors and administrators at traditional U.S. universities may well find a measure of clarity in Judge Evans’ opinion.  This Kat isn’t quite sure what the rest of us are meant to find, except for the time being, an opportunity to offer you, dear readers, a refresher and a whole new set of questions to ponder regarding the maddeningly undefined and circular issue of “fair use” in American copyright law.

A very brief set up of the facts that Judge Evans found to be material is required.  Professors would request that the library staff upload particular excerpts of works to the University’s intranet, ERES.  The excerpts were required reading for students in particular courses, and only those students would have access to the excerpts through a password protected system.  The students could read, download, and print the excerpts.  The excerpts ranged in length, but on average and most often represented one chapter of a book.  Before the library would upload the excerpts, the professors were required to complete a “fair use checklist.”  The publishers each had relationships to varying degrees with the Copyright Clearance Center to handle permissions for excerpts of some of their works.  The University had no money in its budget to pay for licenses to use the excerpts.

Free images from FreeDigitalPhotos.net

In order to keep this report something less than an essay, a link is provided here to the fair use statute (at 17 U.S.C. 107) in the United States.  This is a defense to copyright infringement, borne out of the First Amendment right to free speech and the ensuing balance to be struck in copyright law between protecting authors on one hand and the user’s right of free expression on the other.   The statute lays out four non-exhaustive factors to be considered when determining whether a use is “fair.”  The Court carefully examined each factor, and this Kat has attempted to summarize them with something approaching brevity:

FACTOR 1 - the purpose and character of the use, including whether such is of a commercial nature or is for nonprofit educational purposes.   - It seems clear at the outset that this factor is going to favor our defendants.  There was a case in 1996, (Princeton University Press v. Michigan Document Services), where printers of educational coursepacks sought to fall under this factor, but the operative term was “nonprofit.”  In that case, the printers’ motive was profit, and the printer in question was the only one who did service for the University of Michigan who did not pay “permission fees,” as they were known, to publishers.  The 6th Circuit in that case made fairly short order of MDS’s fair use claim, but Judge Gil Merritt wrote a dissent, sounding the alarm of the broad consequences of the decision that essentially jettisons the “multiple use for classroom study” exception in the statute.  The MDS case arguably made the entire fair use argument hinge on the motive of the actual copier, not the purpose of the copying.  The case at hand may have extended this rationale.  Georgia State is purely nonprofit, all the actors involved are Georgia State employees, ergo, fair use.   And a vast majority of the universities in the United States are non-profit.  But what happens when a for-profit university like Phoenix tries to teach the same class with the same materials?  Are they unable to take advantage of fair use for educational purposes merely because of their for-profit structure?  

This Kat feels it necessary to disclose
that she is about to be come a published
author with  Oxford University Press
in the work shown above. 
She has made every attempt
not to let this relationship color
her analysis of the case at hand.

FACTOR 2 - the nature of the copyrighted work -  Essentially, the analysis under this factor is that the more creative the work, the more entitled to protection it is.  Fictional works are generally entitled to greater protection.  Judge Evans could have stopped here and probably given Factor 2 to the defendants, although the 6th Circuit and 2nd Circuits have come down differently on this issue when dealing with exactly the same kind of books as at issue here.  The judge’s further reasoning, though, is troubling.  The judge correctly observes that “criticism and comment” are listed in the statute as activities to be favored for protection under fair use.  However, the statement that because “criticism and comment” are “deserving of more public exposure, not less and hence works of this nature more likely will be protected by fair use” because the works are not fictional but are intended to “inform and educate,” is turning the ‘criticism and comment’ defense on its head.  The judge rightly refers to the major Supreme Court case on fair use, the Campbell v. Acuff Rose Music, Inc. case in which the rap group 2 Live Crew recorded a fairly obscene version of the famous Roy Orbison song, “Pretty Woman.”  The song, on the creative-to-informational scale, is about as original, expressive, and creative as it gets.  The safe harbor for “criticism and comment” has to do with the actions of the alleged infringer.  It has nothing to do with the nature of the work copied.  It is this Kat's opinion that this reasoning doesn’t even belong in a discussion about the second factor, in fact, and its inclusion here is likely to cause some distress among owners of non-fiction copyrighted works in general.

FACTOR 3 - the amount of the work taken in relation to the whole - after a long analysis in which it is concluded that the “whole” of the copyright in a book is the book itself, and can not be measured by individual chapters (regardless of whether the chapters were written by one author or separate authors, or ever intended to be a whole work in the first place, so long as the publisher has the copyright in the whole book), the Court gives to non-profit universities a checklist, stunning in its completeness, (and evidently likely to stir up consternation at universities) for determining “how much is too much” to take and still be protected by fair use.  The only thing to do here, really, is to simply post that part of the holding:

Where a book is not divided into chapters or contains fewer than ten chapters, unpaid copying of no more than 10% of the pages in the book is permissible under factor three. The pages are counted as previously set forth in this Order. In practical effect, this will allow copying of about one chapter or its equivalent. (footnote omitted) Where a book contains ten or more chapters, the unpaid copying of up to but no more than one chapter (or its equivalent) will be permissible under fair use factor three. Excerpts which fall within these limits are decidedly small, and allowable as such under factor three. Access shall be limited only to the students who are enrolled in the course in question, and then only for the term of the course. Students must be reminded of the limitations of the copyright laws and must be prohibited by policy from distributing copies to others. The chapter or other excerpt must fill a demonstrated, legitimate purpose in the course curriculum and must be narrowly tailored to accomplish that purpose. Where the foregoing limitations are met factor three will favor fair use, i.e., will favor Defendants. Otherwise factor three will favor Plaintiffs.

FACTOR 4 - the effect of the use on the Potential Market for or Value of the Copyrighted Work

Here, the discussion centers largely around two points, first whether the excerpts were available through CCC (Copyright Clearance Center) in a way that was reasonable for the defendants in terms of access and cost.  The Court sets an alarmingly high standard for “reasonable” in this instance, namely, if the excerpts were only available for paper copies and not for digital distribution, as some were in this case, then this is not a reasonable satisfaction of the defendant’s needs when the defendant’s practice is to distribute readings electronically.  In other words, if the excerpts are not available in the way the defendant wants them, then they are essentially unavailable.  The Court quotes trial testimony that “Educational users today want digital materials,” but this Kat is unconvinced that this passage can not be used convincingly by fair use defendants outside of the non-profit educational settings to show that they could not have obtained a license to the material they used without permission. 

The “availability” question may have been the most important in the case.  In the end, 9 of the 74 works in question were available for digital permission on a chapter-by-chapter basis, and Georgia State’s use of those works was found to be infringing.

The second issue the Court discussed was the issue of lost revenue.  The plaintiffs argued in this case that the lost permissions fees did serious damage to their budgets; the Court simply looked at the plaintiff’s other “rights and permissions” income and found it to be less than one percent of the respective publishers’ overall revenue, and therefore “not significant.”  Evidently none of the plaintiffs argued that the students would have had to purchase the complete books but for the excerpts being available.  With what textbooks cost when this Kat was in school, she can only imagine what those numbers would look like for the publishers now.  (Notably, although Judge Evans took note of the University's lack of a budget for licenses, this fact does not appear again in the opinion).

The opinion includes a further 250 pages of analysis of each of the excerpts in question, which you, dear readers, are free to peruse.  And this Kat certainly must applaud Judge Evans’ incredibly thoughtful analysis, even if at the end of the day as many questions are asked as answered in this opinion.  Traditional non-profit universities certainly have been given some measure of clarity with regard to using copyrighted materials in the classroom, so long as this opinion stands, at any rate.  (The publishers have not yet stated whether they will appeal.)  Other types of institutions looking to take advantage of fair use may or may not find any additional safe harbors in this opinion, although those harbors will certainly and reasonably be sought.   At the end of the day, this Kat simply has to throw up her paws and heartily agree with Judge Evans when she says in the opinion that “The truth is that fair use principles are notoriously difficult to apply.”