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Vol. 27 No. 10 — Nov. 2010

At issue was the copying of excerpts and articles from journals for use as course materials in classes taught by the faculty. The publishers specifically challenged the use of electronic course-web and electronic library reserve systems, where the materials were scanned and distributed electronically. GSU’s defense was based chiefly on the fair use doctrine, which allows use of copyrighted works for certain limited purposes, including educational and classroom use.

The academic community had been expecting and maybe even hoping for a lawsuit such as this. Electronic distribution of course materials through individual instructor websites, packaged course-web software such as Blackboard or uLearn, or through library electronic reserve systems have become commonplace. These systems have supplemented and increasingly replaced the traditional printed coursepack, a bound collection of material specifically selected by the instructor and used in addition to or in lieu of a purchased textbook.

Fair Use or Infringement?

Of course, the key question revolves around whether these practices are fair use or infringement. Previous court decisions tended to skirt around the specific issues raised in the GSU lawsuit: Was the copying done specifically by an academic institution or an instructor for the instructor’s course fair use, and what limits apply to the copying?

The Classroom Guidelines developed in the late 1970s established some basic ranges for permitted copying, but it did not have the force of law. Two court decisions from the 1990s held that copying for use in printed coursepacks by a commercial copyshop was not fair use, but those decisions were based primarily on the commercial nature of the shop that was copying the materials and not strictly on the end use of the materials by the instructors. Another decision held that copying journal articles for personal use by nonacademic researchers (working in the R&D department of an oil company) was not fair use. But again, the decision was based more on the commercial nature of the user than on the use itself.

This case involved activities strictly within the academic realm. The copying or scanning in question was done by GSU faculty or staff, and the distribution was through university-owned systems. The copier, user, and use were all for nonprofit educational uses. Perhaps, this case would address the questions left unanswered by the Classroom Guidelines and earlier decisions.

A Partial Victory

In a court decision on Sept. 30, the judge in the case gave GSU a strong, though partial victory in the case. However, the decision did not rest entirely on the grounds of fair use, although fair use seemed to get strong support, and the decision did not end the litigation. Much of the decision relied on narrow readings of copyright law. These may be technical factors to some degree, but they still send important information to other institutions engaged in academic copying.

The lawsuit claimed that GSU’s faculty and staff had engaged in widespread copyright infringement through their electronic course reserve (e-reserve) and course-web systems. The suit did not make a claim for damages, but instead, it sought a declaration by the court that the copying infringed on the publishers’ rights and that a court order be issued to stop the copying.

The suit was specifically filed against the GSU president, provost, university librarian, and members of GSU’s Board of Regents, who defended their case by saying that their use was fair, that as a state institution they had sovereign immunity, and that the specific individuals named in the lawsuit were not engaging in copying. This latter point may seem a bit technical, but it became an important part of the judge’s finding.

Direct, Vicarious, or Contributory Infringement

The publishers presented three alternative reasons why GSU could be liable for copyright infringement. The first is direct infringement, meaning that the GSU defendants directly infringed the copyrighted materials and that fair use did not apply. The second reason was that the GSU defendants were vicariously liable for copyright infringement. Vicarious liability is a situation where a person or organization has a “right and ability to supervise” a direct infringer, fails to prevent the infringement, and profits or benefits from the infringing activity.

The third basis for liability was that GSU defendants were contributory infringers of the copyrights. Contributory infringement is similar to vicarious infringement, but it requires the defendant to actively cause, induce, or materially contribute to the infringing conduct of another. There is no additional requirement that the defendant profit or benefit from the infringing activity.

The Sept. 30 decision found that GSU did not commit direct infringement of the publishers’ copyrights. The court held that GSU as an entity, and the GSU president, provost, librarian, regents, and other named defendants, actually used the copyrighted works or were involved in the fair use determinations. This may seem to be a bit more of a technical victory because the court made it clear that an employer could still be vicariously or contributorily liable for an employee’s infringing activity, including liability for incorrect fair use decisions. However, this holding suggests that it may be more difficult to find an institution as a whole liable for the acts of individual faculty or staff members.

No Profit From Infringement

On the claim of vicarious liability, the court also found in favor of GSU primarily on the grounds that GSU did not profit from infringement. The court rejected the publishers’ arguments that the reduced cost of electronic distribution was a financial benefit. Actions that GSU took to encourage the use of course-web and e-reserve technology to attract students, “shifting” from print coursepacks to electronic readings, and other cost savings through the use of technology were not the same as benefiting specifically from copyright infringement.

Notably, the court did not consider that one possible reason for the shift from print coursepacks to electronic readings (e-readings) was that coursepacks (generally printed by a central university or commercial copy center) usually involve the payment of royalties, whereas e-readings often do not. The court noted that course-web and e-reserve systems have “substantial non-infringing uses,” presumably including fair use of copyrighted materials. The court also noted that GSU’s copyright policy, which was updated in 2009 after the lawsuit was filed, required employees to provide a fair use analysis before scanning or posting material. Collectively, this supports an argument that scanning done for e-reading purposes (and done in consideration of the fair use doctrine and a copyright policy) may be enough to defeat institutional liability.

On the final claim of contributory liability, the court was undecided, finding neither in favor of GSU nor in favor of the publishers. However, clues in the court’s reasoning suggest that GSU is likely to prevail here as well. The publishers had argued that by providing facilities for electronic distribution, failing to remove “infringing works,” encouraging the use of the course-web and e-reserve systems, and failing to pay permission fees constituted infringement. The court disagreed with those arguments. Instead, the court found that the systems were capable of noninfringing uses and that GSU had done nothing that was considered to be encouraging infringement. The court even found that the revised Copyright Policy demonstrated intent to discourage infringement and suggested that the publishers’ criticism of the policy was “too rigid.”

Copyright Policy in Practice

But the court stopped short of a finding for GSU because it felt that it needed to know about the effectiveness of the Copyright Policy in practice. Specifically, the court wanted evidence about whether the policy in practice was encouraging a correct or an “improper” application of the fair use doctrine.

This case will continue on this final point, with more evidence gathering and another order likely early next year. In the meantime, academic institutions can adhere to the following guidelines:

• Use of course-web and e-reserve systems did not seem to constitute copyright infringement.

• Having a copyright policy that addresses fair use, including the use of a fair use checklist, is critical.

• Demonstrating that the policy is being enforced and is working is critical.

• While it may be difficult to find an institution liable for copyright infringement, finding an individual faculty or staff member liable in a specific case is a different matter.

Though it wasn’t quite the firm statement about course-web and e-reserve copying that the academic community was hoping for, it’s definitely a step in the right direction.