The SCOOP: The Continuing Conundrum of Copyright and Course Reserves

As the fall semester dawns and faculty prepare for classes, libraries return to questions of policy and legality as they process incoming course reserve requests. Copyright issues related to the provision of materials in an educational setting, whether via interlibrary loan, coursepacks, electronic course reserves or course management systems, have been contentious for libraries for decades resulting in the development of overly restrictive guidelines and policies fueled by confusion and anxiety. Much of the confusion and anxiety that exists today is the product of the continuing litigation against Georgia State University, who was sued in 2008 by three academic publishers claiming copyright infringement resulting from the posting of book chapter scans in the University electronic course reserve system.

Georgia State Case – A Timeline

2008 – three scholarly publishers file suit against officials at Georgia State University alleging the library’s scanning and posting of chapters from their published books infringed upon their copyright. Georgia State asserts that their actions fell within the statutory exception of fair use.

2012 – after four years of discovery, rulings on summary judgment motions, and a trial, the federal district court issues its ruling largely in favor of Georgia State. In analyzing the four factors of fair use, the district court rejects the publishers’ argument analogizing electronic course reserves to the coursepack cases of the 1990s wherein copy shops were found liable for copyright infringement for copying, without permission, and selling duplicated course readings. The district court further rejects the 1976 “classroom guidelines” yet constructs another numeric formula for addressing the third factor of fair use. Publishers appeal the decision.

2014 – the federal appellate court for the 11^th Circuit remands the case back to the district court for a rehearing consistent with its ruling, which affirmed the district court’s rejection of the commercial coursepack analogy but disagreed with the district court’s determination that all scholarly works were informational and its construction of a new numerical guideline. The appellate court further instructs the district court to give greater attention to the question of economic harm to the publishers.

2016 – the district court renders its second judgment in the case, again overwhelmingly in favor of Georgia State, in an opinion that employed more of a case by case analysis of the works that had been scanned and posted. The district court’s analysis focuses extensively on the third and fourth factors of fair use. Specifically, the district court evaluates each scan as to whether the quantity selected was pedagogically appropriate for the course. The district court conducts extensive financial analysis for each book scanned to determine the potential for any market harm to the publishers by Georgia State’s use of the works. Again, the publishers appeal.

2017 – in oral arguments before the appellate court, the parties respond to questions that are largely targeted toward market harm and the availability of licensing.

2018 – more than a year after oral arguments were heard in the appellate court, we are still waiting for an opinion.

What Can (and Should) Libraries Do

• Education. Librarians should not only educate themselves about fair use but should also undertake to educate the faculty, staff, and students they serve. There are numerous learning opportunities available for librarians (including this fair use webinar offered by ATLA) to understand the four factors of fair use and how libraries can maximize their use of fair use to enable the legal use of copyrighted works in the classroom, in creative projects, and in digital collection development. In return, librarians should create learning opportunities for or share existing tools with their faculty and students to aid them in their own fair use analyses.
• Honor License Agreement Restrictions (or negotiate to remove them!) Most electronic resource licenses contain provisions regarding the use of material found therein in library course reserve or course management systems. Typically, licenses restrict libraries from downloading content and reposting in their own system, instead of requiring the use of a persistent or stable link to the database version. Libraries should always be aware of and honor these terms or else run the risk of a claim of breach of contract and loss of access. If the license agreement terms overly restrict fair use or other legitimate uses of content, including content that would otherwise be in the public domain, libraries should negotiate the terms of the license agreement so as to not unnecessarily restrict the rights they and their users have under copyright law.
• Act in Good Faith. Fair use is a powerful right that all users of copyrighted material should thoughtfully and thoroughly exercise. Irritation with litigious publishers or frustration with onerous license terms should not lead libraries to act with disregard to statutory or contract provisions. When libraries act in good faith in their fair use application, they are protected from the assessment of certain classes of damages should a lawsuit be filed.
• Seek Out and Encourage the Use of Open Resources – in the June SCOOP Column, we offered a list of strategies and resources libraries can use to locate open content. Librarians should, as part of the educational efforts described above, share these strategies and tools with faculty and others who assist with course development. Further, libraries should consider partnering with faculty to develop open educational resources that can be used in place of restrictively licensed content or expensive textbooks.

Further Reading

• • Although the data in this article represent policies and practices at ARL libraries, the issues raised and conclusions drawn are relevant to libraries of all sizes and types. “Copyright Policy and Practice in Electronic Reserves among ARL Libraries” https://crl.acrl.org/index.php/crl/article/view/16279
  • In “Transforming the Conversation: Rethinking Fair Use in Academic Course Reserves,” the author reflects upon the guidance offered in the ARL Best Practices in Fair Use for Libraries as to how libraries can employ fair use in delivering course materials in an online environment. A preprint of the article is available in the author’s institutional repository. https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=1003&context=libraries_facpub
  • Listen to copyright expert Brandon Butler discuss the Georgia State University course reserves case in this 2016 webinar hosted by the Association of Southeastern Research Libraries. https://vimeo.com/162858085
  • Want to dive more into the copyright issues facing librarians? Consider the free 5-week online course offered through Coursera taught by some of the leading experts in copyright issues facing libraries in higher education. https://www.coursera.org/learn/copyright-for-education

The SCOOP, Scholarly COmmunication and Open Publishing, is a monthly column published to inform ATLA members of recent developments, new resources, or interesting stories from the realm of scholarly communication and open access publishing