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Wednesday, 22 October 2014

Academic outrage at appeals court fair use ruling

Georgia State University
There have been some grumbling in US academia after a federal appeals court overturned a decision in the District Court which a number of academics had found clear and understandable - and of course somewhat favourable to their own, their students' and their institutions' benefit!  As one commentator put it "The U.S. Court of Appeals for the 11th Circuit revoked the quantitative benchmarks previously used in determining what constitutes “fair use” of copyright material  — a decision which could have implications down the road for colleges and universities and their use of electronic resources."

The District Court's decision had recognised that colleges and universities can legally create digital reserves of books in their collections.  Judge Orinda Evans had ruled that de minimis use of copyrighted texts (such as when a faculty member posts a work but no student ever accesses it) is not a violation of copyright, and that in most cases, using one chapter or 10 percent of a book would meet the fair use test.  The appellate court for  Georgia, Florida and Alabama was not so generous,  deciding in favour of a more individual case-by-case evaluation of what is considered fair use, "potentially making it more difficult for instructors to ascertain how much material they are permitted to scan and distribute through online course sites to students."

Academics and librarians said that provisions for fair use were created to allow academics to share and expand upon each other’s publications without paying restrictive fees. But in a unanimous decision, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit  in Cambridge v. Patton rejected a broad ruling on how to determine fair use. One academic website noted "The decision guarantees the case has a long and litigious road ahead of it by reversing the district court’s opinion and sending the case back for further deliberations" and "Rather than strike a decisive blow against fair use, the legal concept that places some limits on the rights of copyright holders, the appeals court instead issued a stern warning against quick-fix, one-size-fits-all solutions to legal disputes - specifically, the idea that copying less than a chapter or 10 percent of a book automatically protects an institution from a lawsuit" - a so called 'bright line' guideline. 

Academic librarians and their lawyers have described the case as a "nightmare scenario. Barbara Fister, a librarian at Gustavus Adolphus College, suggested that the plaintiffs had lost sight of their missions, which include furthering education and scholarship. Having posted an article on his institutions's website in 2011 before either decision,  Kevin Smith, the director of scholarly communications at Duke University said that a broad holding in the plaintiffs' favour would have "catastrophic consequences" either limiting the information that students can read or greatly increasing the cost of higher education.

The case revolves around a challenge by several publishers against Georgia State University’s electronic reserve systems, where faculty members and librarians would scan in excerpts of books for students to access digitally, "a technological improvement over the traditional practice of leaving a copy or two on reserve at the library circulation desk". The publishers claimed mass copyright infringement and claimed that Georgia State University engaged in "systematic, widespread and unauthorized copying and distribution of a vast amount of copyrighted works" through its e-reserves system while Georgia State cited the fair use provisions of Section 107 of the Copyright Law.  The court said “Like many recent issues in copyright law, this is a case in which technological advances have created a new, more efficient means of delivery for copyrighted works, causing copyright owners and consumers to struggle to define the appropriate boundaries of copyright protection in the new digital marketplace”. 

Its undoubtedly an important case, and reports say similar cases are afoot in Canada (against York University), in India (against University of Delhi in the Delhi High Court) and in New Zealand in a Copyright Tribunal case brought by Copyright Licensing New Zealand against all eight of the nation's universities.

The costs of the litigation were funded in large part by the Copyright Clearance Center, a licensing company which funded 50% of the costs along with the Association of American Publishers (AAP).

Cambridge University Press et al. v. Patton et al. (also captioned v. Becker), 1:2008cv01425

More on TechDirt here and Inside Higher Ed here and here and the University of Virginia's Cavalier Daily here

1 comment:

Eric said...

There are quite a few academics, especially those that follow copyright closely, that are actually more encouraged than they are outraged.

See for example analyses from
Kevin Smith, Nancy Sims, and the Association for Research Libraries.

True, many of us feared the worst after oral argument, and so were quick to see "reverse, vacate, remand" and fear the worst. But in truth the appeals courts ruling was really quite positive for academics who favour fair use. For example, Judge Evans' 10% bright line was arbitrary and unsupported by either precedent or statute--she was clearly in error, and had it been allowed to stand it could have been potentially harmful down the road.

The court rejected pretty much all of the major points that the plaintiffs brought. If you read the "concurrence" by the district court judge sitting by designation, it is even more clear how much this actually favored the academy. Obviously this isn't a win for the university, but it may be no better than a Pyrrhic victory for the plaintiffs.