The issue turned on book excerpts that are part of any college student’s required reading. In the past, students paid big dollars to obtain the excerpts as a sheath of photocopies but, more recently, universities began offering them for free online.
The trend threatens an important royalty stream for academic publishers. Three of them, including Oxford and Cambridge, responded by suing Georgia State University which is one of the schools that permits students to download book excerpts.
The school responded by arguing that its distribution of select excerpts is a form of fair use under copyright law. Georgia State had already purchased the books once and believed it should be allowed to share small portions of them online with students in a given class for a limited time.
In a whopping 350-page ruling, US District Judge Orinda Evans found that the excerpts were fair use provided that they amount to no more than one whole chapter. If the book was nine chapters or fewer, the school could use up to ten percent of the pages.
If the rules seems somewhat arbitrary, that’s because they are. Traditional copyright rules have proved unwieldy in a digital era and Judge Evans appears to be attempting to offer some bright line rules to reduce confusion.
In applying her own rules, Evans found that five of the 99 examples before her were not fair use and therefore amounted to copyright infringement. But since Georgia State is a public state school, it enjoys “sovereign immunity” under the Constitution and can’t be sued for damages. This means that Evans can only issue an injunction in coming days that may further define the rules of when a book can be excerpted.
“The injunction will be very narrowly tailored,” predicts Kevin Smith, a Scholarly Communications Officer and copyright expert at Duke University. He added that publishers will press to have the 10 percent number written into the injunction.
The publishers, which are being supported by the Copyright Clearance Center, may decide to appeal the case.
The Georgia State case is just the latest in a long-running series of decisions about coursepacks. Students and academics have long decried their prices as unfair or exorbitant while publishers believe they deserve to be paid. In the past, courts have rejected fair use defenses by companies like Kinko’s that photocopied the coursepacks. The difference this time is that there was no profit motive at play because it was a university — not a private company –acting as the distributor.
James Grimmelmann, who has parsed the case closely, believes it will help the Copyright Clearance Centre by establishing exactly when extra licenses are needed to use copyrighted material. See the Publishers Weekly and the Chronicle of Higher Eduction for more good coverage of the case.
(Image by Andresr)