US fair use and libraries - the GSU e-reserves case

Two weeks ago, on 11th May, the District Court for the Northern district of Georgia handed down its decision on the Georgia State University’s (GSU) e-reserve system. The last two weeks have been very busy for the ADA so we haven’t had a lot of space to look at the decision. Anne Flahvin from Policy Australia, however, gave us an excellent run-down of the case and I thought that the insights the decision provides on the US doctrine of fair use and the way this doctrine can be used by libraries would be interesting to our readers. While still subject to a possible appeal, the decision is largely good news for libraries as it found only five cases of infringement out of the 75 claimed by the publishers.

At issue was GSU’s provision of excerpts of material provided for student access via e-reserve or a course website. Anyone who has been associated with a university in the past decade will know that this practice is widespread and necessary in modern universities. It just isn’t possible to require students to buy, or even try to all borrow, 15 books for a single subject, when only a small part of each text is relevant to their studies. The publishers who brought the case, however (Cambridge University Press, Oxford University Press, and Sage Publications) weren’t arguing against the use of e-reserves in general. Rather, they were arguing against GSU’s decision to provide the excerpts freely under the fair use doctrine, instead of obtaining a licence. Ultimately the court upheld GSU’s uses as fair use in all but 5 of the 99 (later reduced to 75) alleged instances of infringement.

Before focusing in on the decision itself, it’s worth very quickly recapping the fair use doctrine. Fair use is a free defence to copyright infringement in the US. There are four factors that a decision maker needs to consider and then weigh against each other to determine whether a use is ‘fair’. These factors are:

  1. The purpose and character of the use
  2. The nature of the copyrighted work being used
  3. The amount and substantiality of the portion used
  4. The effect of the use on the potential market for the work

(By contrast, in Australia we have two remunerated licences in parts VA and VB of the Copyright Act 1968 which provide the mechanism for universities to copy limited amounts of certain material for their students, supplied either via hardcopy or e-reserve.)

The good news for libraries out of this case is that the court found that the first two factors will almost always be decided in favour of the library providing the material on e-reserve. This is because;

a) The purpose and character of the use is non-profit educational use and

b) The nature of the work being used is informational rather than creative.

The publishers argued against a finding for libraries on factor 2, by contending that academics still expend a lot of effort in putting together textbooks or researching, but Judge Evans made the point that copyright is designed to protect creativity rather than effort, and that academics have numerous motivations other than royalty payments for producing and publishing work. There is an additional consideration under this factor to consider whether the use of copyrighted material is ‘transformative’, however, even though the university’s use was only straight reproduction of the material, this didn’t immediately count against factor 2 being found in their favour. Rather, it meant that the portion that could be copied under fair use would be smaller than if the use was transformative.

What this all means is that the crux of the fair use finding lay in the assessments made under factors 3 and 4; the amount and substantiality of the portion used, and whether the use impacted on the market for the work. The publishers had argued that guidelines drawn up in 1976 in negotiation with publishers and educators should determine the proportion of a work it would be fair for the university to copy. These guidelines were very restrictive and had the added requirement of ‘spontaneity’ which ruled out the possibility of any system of copying being able to qualify as fair use. This argument was firmly rejected on the grounds that the guidelines provided the minimum rather than the maximum standard for fair use. Instead, the court determined that, “(t)he right approach is to select a percentage of pages which reasonably limits copying and to couple that with a reasonable limit on the number of chapters which may be copied.”  As such, for factor 3, Judge Evans found that a reasonable portion in this instance was 10% of a work made up of less than 10 chapters, and one chapter or works consisting of more than 10 chapters.  In assessing factor 4, the court required that a licence for the excerpt (rather than the work as a whole) had to be ‘readily available at a reasonable price’ before the copying could be found to impact on the market for the work. Sage Publications was the only publisher that offered licences for these parts of works, and four of the five instances of infringement were works owned by Sage.

While there is understandably some concern that Judge Evans’ 10% or one chapter rule draws a ‘bright line’ in what is otherwise a doctrine founded on flexibility, it is worth noting that copying above 10% or one chapter does not automatically count against fair use – if there is no readily available market for the extract, copying more than 10% will still be considered fair use.

This decision is not the final word in the GSU case. Judge Evans deferred ordering relief for the five infringements, and has not ruled on whether either party will have to pay the others costs. It is also very likely that the decision will be appealed. And even though the decision is, at the moment only binding on GSU, Director of Public Policy Initiatives for the Association of research Libraries Brandon C Butler has noted that judges in other jurisdictions are not likely to want to start from scratch. Judge Evans' opinion could be the beginning of the analysis in future copyright cases concerning educational uses. It provides at least a safe harbor beyond which libraries may nevertheless choose to sail according to their own priorities and tolerance for risk.

If you would like to read more on the GSU case, the full transcript of the case is available here, and some excellent commentary is available from these pages;