|July 7, 2012|
Previously published on June 2012
The paper course pack--the humble workhorse of the late-20th-century classroom--is being put out to pasture. Rather than starting each semester by assigning those once-ubiquitous loose-leaf or bound stacks of articles, chapters, and essays, today’s professors tend instead to direct their students to electronic portals where those materials are posted in digital form.
With the advent of the digital course pack, however, comes a new array of copyright quandaries, some particularly daunting to general counsel at our institutions of higher education. Most pressingly: Is it a fair use for professors to post copyrighted materials to the school’s portal without the permission of the publishing houses that own the copyrights? And what sort of fair use policies should universities put in place to stay on the right side of the Copyright Act?
These were the questions presented in Cambridge University Press v. Becker, a widely watched federal lawsuit in Georgia. The litigation is understood to be a test case brought by the academic publishing and licensing industry, a fact not missed by the court, which observed that the Copyright Clearance Center and Association of American Publishers “organized the litigation and recruited the three plaintiffs to participate.”
The recent opinion in Cambridge University Press is a massive, 350-page opinion that looks and reads like one of the academic tomes at issue in the case.
To understand the court’s discussion of digital portals, it is helpful to have a sense of the copyright treatment of their paper predecessors.
The battles over paper course packs, largely waged in the 1990s, were intense and generally resulted in victories for copyright owners. In the often-cited case of Princeton University Press v. Michigan Document Services, Inc. (1996), for instance, a federal appeals court concluded that it was not fair use for private copy shops located near universities to reproduce, for students, compilations of assigned readings provided to the copy shop by professors.
The court in Michigan Document Services focused on the fact that copyright holders generally followed a sophisticated approach toward granting permissions to copy assigned readings in exchange for set licensing fees. (The licensing revenue was purportedly being jeopardized by the unlicensed reproductions).
Moreover, the appeals court looked to certain “Classroom Guidelines” located in the Copyright Act’s legislative history, which gave “a general idea, a least, of the type of educational copying Congress had in mind” that might constitute a fair use. As those guidelines were very restrictive (containing strict length, timing and other requirements), the court concluded that the copying in the Michigan case did not qualify as a fair use.
But how would this holding and others like it translate to the contemporary digital environment for non-profit universities? According to the Georgia court, the digital realm (at least as currently arranged at Georgia State University) tilts the balance in favor of fair use.
In the digital portal environment, students generally access the materials for just those courses in which they are enrolled by logging in with passwords. Some will read them in real time on the screen as each comes up on the syllabus, others will download them at once for later review, some will print them out in hard copy to be reviewed the old-fashioned way. Some, of course, will not bother to read them at all.
At Georgia State University (GSU), the decision as to which materials to post for a course was left to the individual professors. Like many schools, GSU maintained a series of Copyright Policies, which included a “fair use checklist” that professors were required, after 2009, to complete for each selection for which the professors did not attain permission. (The policy tried to ease the attaining of permission by providing links to licensing agents for publishers, but nevertheless put the onus on professors to collect any licensing fees that would be due to the publishers.)
Of the 75 excerpts challenged as copyright infringements after a full trial, the Georgia court concluded that only five such excerpts infringed publishers’ copyrights. Of the remaining 70, a large majority were protected by the fair use defense. (In some cases, the court did not reach the fair use issue as the infringement claim failed for other reasons.)
How, then, did the court distinguish the fair use claims here over the Michigan case and others like it? And what might general counsel do to assure anxious trustees that the digital portals at their institutions comply with current fair use law?
It is difficult to generalize with respect to the court’s opinion, as its length is partly due to its impressively particularized treatment of each and every one of the 75 works in suit. As always with fair use, the specific nature of the infringed work, the amount taken, and the context of the use are of critical importance.
That said, some key tendencies emerge in the analysis:
The non-profit, non-commercial nature of GSU and its scanning and digital posting service clearly weighed in its favor, as opposed to the for-profit copying being conducted by the private copy shop in Michigan Document Services.
The court tended to find fair use more readily where there was no obvious way for a professor to attain permission to post a specific excerpt in digital form. A digital license for many of the works or excerpts at issue was simply not available through the publishers or the Copyright Clearance Center (the licensing company relied on by most publishers to handle rights issues). This favored a finding of fair use, even though a permissions program for the excerpt may have been in place for distributing hard copies. 
The court tended to find fair use more readily where the electronically posted excerpts were less than or equal to one chapter (for books with ten or more chapters) or 10%of a given book (for books without chapters or fewer than ten chapters).
The court in Georgia (contrary to its predecessors) largely ignored the Classroom Guidelines in the Copyright Act’s legislative history as being non-binding, and too absolutist in their application.
Because GSU is a state university, it enjoys immunity under the 11th Amendment from certain claims in federal litigation. While the court agreed with GSU that it is immune from claims from damages, the court held, citing Supreme Court precedent, that the plaintiffs could seek an injunction to prevent future copyright infringement.
This decision was rendered by a federal trial court, not an appellate court, and will almost certainly be reevaluated on appeal. Whether the lower court’s methodology and conclusions will be affirmed on appeal remains to be seen.
For now, however, the Georgia court’s opinion is the current best guidance on the application of fair use to electronic portals and course materials.
Relying on the opinion, then, counsel for non-profit schools might want to tweak their fair use check lists to require professors to confirm that (1) no license for electronic posting of the excerpt is readily available from the Copyright Clearance Center or publisher; and (2) they have used no more than one chapter (for books with ten or more chapters) or 10% (for books without chapters or fewer than ten chapters) of a given book.
While these changes certainly do not guarantee a finding of fair use, they do seem to be key determinants of the outcome in the unique context of electronic course packs.
 The irony of this approach is that the more a publisher or other rights-holder seeks to prevent electronic distribution by not licensing its works digitally, the easier it will be for professors to electronically post the works without permission.