The Use of Fair Use

WASHINGTON -- Publishers are seeking “corrective authoritative guidance” from the federal government to stop the trend of court rulings they say are expanding copyright exemptions beyond their legal intent, but higher education associations argue interfering could upset the balance between copyright holders and consumers.

The Association of American Publishers made its appeal to a U.S. House of Representatives subcommittee on Wednesday during a hearing on fair use and access for the visually impaired. The second topic, however, was somewhat overshadowed by the ongoing legal disputes over what colleges and universities can and cannot do with copyrighted works.

Earlier this fall, publishers scored a rare courtroom win after a federal appeals court rejected a key part of a ruling that established a rule for determining when the use of a copyrighted work falls under fair use -- a concept that creates some limitations for copyright holders in teaching-related contexts.

Allan R. Adler, the AAP’s vice president of government affairs, devoted much of his written remarks to that case, which involves Georgia State University’s “e-reserves” -- a repository for faculty members to make digitized course materials available to students. Three publishers challenged that practice in 2008, and six years later, the case is headed back to a lower court.

The Georgia State ruling is more the exception than the norm. Publishers have endured a string of defeats in the courts, which have generally ruled in favor of the universities.

Those decisions, Adler wrote, seem to be a “determined effort to sidestep the objective statutory fair use criteria in favor of an inquiry into an ever-broadening concept of ‘transformativeness’ and highly subjective notions of certain uses broadly being ‘in the public interest’ or providing ‘significant public benefits.’” Unless the federal government steps in, publishers could be deterred from investing in digital content, he wrote.

“While fair use would no doubt continue to have its place in the use of portions of copyrighted works for educational purposes, the convenience and affordability of licensed use of such materials should be weighed by Congress in assessing why the ‘new jurisprudence’ on fair use -- represented in this context by some aspects of the court opinions in the GSU litigation -- must not be left to continue developing without some corrective authoritative guidance to provide the additional clarity, consistency and predictability that it has failed to produce,” Adler wrote.

During the hearing, Adler stressed that he was not asking Congress to rewrite parts of the Copyright Act of 1976, but to instead direct the Copyright Office to study and clarify how fair use operates in higher education.

Jack Bernard, associate general counsel for the University of Michigan, urged caution. The balance of power between the rights of copyright holders and their limitations has been “extraordinarily powerful,” he wrote. Any attempt to tweak copyright law “should not disrupt the basic structure of rights,” as doing so could “destabilize the higher education ecosystem,” he warned.

“Although a changing world may indeed warrant new provisions or adjustments to the act, these modifications should not disrupt the time-tested structure that carefully balances the copyright holder’s rights with limitations that authorize rights and uses for the public,” wrote Bernard, who testified on behalf of a group of higher education organizations that included the Association of American Universities, the American Council on Education and the National Association of Independent Colleges and Universities, among others.

As associate general counsel, Bernard has personally been involved in one of the recent legal disputes. Michigan and Indiana University run HathiTrust, a book digitization consortium. A federal appeals court this summer upheld a ruling that found the HathiTrust project constituted fair use, rejecting an appeal brought by the Authors Guild.

During their questioning, several committee members asked Adler and Bernard to argue why fair use should either be flexible or narrow.

Bernard used the HathiTrust case as an example. Had it not been for the flexibility of fair use, he said, HathiTrust never would have digitized millions of books.

Adler said universities should pay to license digital content the same way they pay permission fees for physical copies. In his written remarks, he listed the many additional fees Georgia State charges its students on top of tuition -- fees that cover student activities, transportation and technology. The university could have paid for an Academic Annual Copyright License, priced at an estimated $3.75 per student, and avoided the legal mess in the first place.

Bernard cautioned against a “license regime” in which fair use is marginalized. 

“The idea of a world in which everything is digital gives us wonderful opportunities ..., but there is also concern that we might actually start transgressing in what would be a fair use,” Bernard said. “In a world where everything is digital, it’s possible to license a page, a paragraph, a sentence.”