Georgia On My Mind: Fair Use, Digital Availability & Reasonable Pricing

In April 2008, three publishers Oxford University Press, Cambridge University Press and Sage, filed suit against Georgia State University (GSU) for copyright infringement.  The Publishers charged that university officials had facilitated and encouraged the posting of the publishers' works on university websites and, consequently, made this copyright material available for students without compensation to the publisher.  While only three publishers were part of the suit, the case has been closely watched by both sides in the case: The three publishers being generally representative of all academic and scholarly publishers and GSU as representative of educational institutions particularly academic libraries.  Suing your customers is a very unsavory practice and generally both frowned on and generally only taken as a last resort.  The publishers felt that this case represented a slippery slope in the expansion of the application "fair use" within academia that could fully undermine their own business models and was thus worth fighting despite the potential for negative fall-out.

The case as adjudicated is victory for GSU although there may be some significant caveats which will become be even more important as the publishing business accelerates towards more electronic availability and delivery.  Firstly, however this is how Judge Evans summed up the case (Copy at InfoDocket):

Of the 99 alleged infringements that Plaintiffs maintained at the start of trial, only 75 were submitted for post-trial findings of fact and conclusions of law. This Order concludes that the unlicensed use of five excerpts (of four different books) infringed Plaintiffs’ copyrights. The question now is whether Georgia State's 2009 Copyright Policy caused those infringements. The Court finds that it did, in that the policy did not limit copying in those instances to decidedly small excerpts as required by this Order. Nor did it proscribe the use of multiple chapters from the same book.  Also, the fair use policy did not provide sufficient guidance in determining the “actual or potential effect on the market or the value of the copyrighted work,” a task which would likely be futile for prospective determinations (in advance of litigation). The only practical way to deal with factor four in advance likely is to assume that it strongly favors the plaintiff-publisher (if licensed digital excerpts are available). The Court does believe that Defendants, in adopting the 2009 policy, tried to comply with the Copyright Act. The truth is that fair use principles are notoriously difficult to apply. Nonetheless, in the final analysis Defendants' intent is not relevant to a determination whether infringements occurred.

The publishers only proved five of the 99 infringements and will be very disappointed by this result.  Further, their financial claims may be marginalized later by the Judge; in which case, they are not likely to gain any significant financial 'reward' for these five infringements.  (Who would pay in any case is also a question since the Judge affirmed sovereign immunity but that's above my pay grade).

In her explanation, Judge Evans did present some important qualifications in her interpretation (based on the Campbell case which defined four criteria) of the fair use determination.

The most interesting interpretations to me were the following (pages 87-89): Firstly, on the amount of content that could be used under fair use, the Judge stated the following:

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. 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.

That suggests to me that publishers will be encouraged to disaggregate their content into chunks so that each chapter stands independently.  Hard to do in print, this is entirely possible electronically (as part of the publishers digital strategy).  Which brings me to the second item of interest in the case:

Unpaid use of a decidedly small excerpt (as defined under factor three) in itself will not cause harm to the potential market for the copyrighted book. That is because a decidedly small excerpt does not substitute for the book. However, 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 (in this case, permissions for digital excerpts), and permissions are not paid, factor four weighs heavily in Plaintiffs' favor. Factor four weighs in Defendants' favor when such permissions are not readily available.

Judge Evans has plainly stated that if a publisher's chapter is readily and easily available and the permission is set at a "reasonable price" then the law comes down on the publisher's side.  She notes specifically, Copyright Clearance Center which can deliver a permissions fee to the user (faculty, librarian, etc.) via Rightslink and, although CCC does not hold the actual content, publishers will be motivated to create digital repositories at a disaggregated level.

Anything connected with content and digital continues to move apace and who knows what the practical impact of this ruling will be as more and more content is digitally available and traditional frameworks around which content is organized begin to erode. The traditional monograph and textbook construct will dissipate and this ruling might seem to give that transition impetus.

CCC has been trying to move institutions towards campus wide licenses and this business model has proceeded fittingly over the past three or four years.  I suspect this program will become much more interesting to many more administrators given this ruling.  In Canada, Access Copyright has attempted to unilaterally apply the all-in-model for schools there but has faced tough opposition over the pricing structure.  Some schools have been asked to pay several multiples of the amounts they were paying under the old pay-as-you-go model.  As the kinks are worked out, Access Canada is likely to sign up most of the schools in Canada to this program. The UK has had the universal license program from many years.

There's no doubt the application of fair use will continue to generate friction between content owners and (in this case) educators and librarians but then technology continues to advance as well making all of this content both accessible and trackable.  Publishers might be able to live with 10% fair use if they can track and monitor the users but to do that they will probably have to universally participate in agencies like CCC and Access Copyright.