Intellectual Property Law

Copyrighted Material v. University-Provided Digital Copies

By IBLS Editor

This could be one of those IP-IT (Intellectual Property- Information Technology) land-marking cases in the United States ("US"):  Oxford University Press, Cambridge University Press, and SAGE Publications, supported by the Association of American Publishers (hereafter "the Publishers"), have sued Georgia State University ("GSU") for copyright infringement.  The Publishers claim GSU is infringing upon their copyrights by providing digital copies of the Publishers' courses to GSU students.    

The Publishers filed this copyright infringement lawsuit in a US District Court in Atlanta. The Publishers argue that GSU allows its faculty to upload copyrighted material in what the school calls "course packs."  Course packs contain six-months reading material for the students and can be accessed electronically.  The Publishers claim the GSU faculty does not obtain permission to upload their copyrighted work in this electronically-accessed library.  Students get the course material 'without ever setting foot in a bookstore or spending money for them,' the publishers' complaint states.  The Publishers are only demanding GSU to cease its practice; they are not seeking monetary damages.  

Is this case covered by the 'fair use' doctrine?  17 U.S.C. § 107 establishes a list of cases in which reproduction of a particular work is 'fair' under the law.  Indeed, reproduction for news reporting, teaching, scholarship, education, and research purposes may be considered 'fair use' under § 107 of the US Copyright Act.  Section 107 also establishes four factors to determine whether reproduction of a particular work is fair under the law.  These factors are:  (1) whether the purpose of the reproduction is commercial in nature or it is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) 'amount and substantiality of the portion used in relation to the copyrighted work as a whole'; and (4) 'the effect of the use upon the potential market for or value of the copyrighted work'. 

The Publishers found, and stated in their complaint, that GSU copied large excerpts from multiple copyrighted works and a great number of chapters from the publishers' books.  They found over 6,700 works listed in GSU's electronically-accessed library and available for over 600 school courses. 

Thus, the critical analysis in this complaint may be centered in factors 3th and 4th above.  Is the amount of the GSU copied material protected by the 'fair use' doctrine? And what is the effect of the GSU's action upon the Publishers' potential market?  These are important questions to be answered and common to many other educational institutions that provide 'electronic-libraries.'  Referring to the issue of the fair use doctrine, the Attorney for the publishers said that payment of permission fees for the use of the copyrighted works by GSU is not going to affect the legitimate exercise of the fair use doctrine.  In fact, "To the contrary, it will in fact ensure that those works continue to be produced and available to current and future generations of students." 

The decision in this case will establish a relevant precedent to a widely-used system in American schools: E-reserves.  E-reserves are those digitally-kept library systems that allow students to download or simply read assigned course materials without having to buy a specific text book. Some schools and universities using this system obtain legal permission from publishers before indexing any copyrighted material in their E-reserve system.   Others do not seek permission to reproduce and make these works electronically accessible to their students without any legal permission or compensation. 

The closest case found in the American jurisprudence is found in Basic Books v. Kinko?s Graphics Corp. (1991).  In this case Basic Books, a text book publisher, sued Kinkos for copyright infringement for Kinkos' sale of 'coursepack' systems.  The court in this case held that Kinkos was required to obtain permission from the text publisher and pay the appropriate fees for those courses used in their 'coursepack' product.  Indeed, the court said that copying a whole chapter is "quantitatively" and "qualitatively substantial" under the US Copyright Act.  Yet, the difference between Kinkos and the GSU case is that Kinkos is not an educational institution and it does not seem to fit in any of the exempted fields listed in § 107 of the Copyright Act. 

Full post as published by IBLS Internet Law Blog on May 12, 2008 (boomark / email).