In Friday’s decision in Cambridge University Press v. Patton, the U.S. Court of Appeals for the Eleventh Circuit followed decades of jurisprudence in casting aside bright line rules for determining whether faculty made fair use of copyrighted material. This is regrettable, as the celebrated 2012 district court opinion in the same case had opened up the possibility of teaching faculty how to properly make fair use of material using plain terms and easy-to-understand concepts, while the appeals court opinion returns us to the days of case-by-case holistic analysis and detailed exceptions, loopholes, and caveats.
The case revolves around a challenge by several companies that published non-textbook scholarly works to Georgia State University’s electronic reserve systems, wherein faculty and librarians would scan in excerpts of books for students to access digitally, a technological improvement over the traditional practice of leaving a copy or two on reserve at the library circulation desk. The publishers claimed mass copyright infringement while Georgia State cited the fair use provisions of Section 107 of the Copyright Law.
The district court exhaustively analyzed each work uploaded to electronic reserves, finding only five in violation out of the dozens submitted by the publishing companies, by taking a new twist to the law’s four factors for analysis:
The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
The nature of the copyrighted work;
The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
The effect of the use upon the potential market for, or value of, the copyrighted work.
Traditional fair use analysis calls for a case-by-case analysis of each potential use, independently weighing the four factors holistically, which is difficult and often requires knowledge of unavailable facts (such as the effect on the market of the work, which is nearly impossible for those outside of the company to guess at). (For instance, the Supreme Court in Campbell v. Acuff-Rose Music, Inc. specifically discarded any use of “bright line rules” for determining fair use of copyrighted material.)
Judge Orinda Evans went a different route. She found that de minimis use (such as when a faculty member posts a work but no student ever accesses it) is not a violation, and that in most cases, using one chapter or 10 percent of a book that is under copyright protection would meet the fair use test. The judge decided to clearly assign winners in each of the four factors, and then give the overall win to the party with the majority of factors in their favor.
She wrote that factors one and two almost always went in favor of nonprofit higher educational use of academic works. While a determination of factor four may be difficult for a faculty member to determine, and would likely go in favor of the publishers, the judge ruled that 10 percent or one chapter of a work that is digitally available would meet the fair use test for factor three. Adding factors 1, 2, and 3 together let her find a majority and, thus, fair use, even without factor four.
Note that these findings were for those works that could be purchased digitally. In another section, the judge applied some behavioral economics to factor four by finding that for those works that a publisher did not make available digitally, a faculty member could use approximately 18 percent of the work and still win a fair use analysis. That larger limit of factor 3 could encourage publishers to make their works available at reasonable prices, so as to discourage fair use without remuneration.
This was a groundbreaking opinion that allowed intellectual property lawyers in higher education to clearly explain to administrators and faculty members which uses would and would not be fair. Rather than require our botany and geography professors to also become copyright scholars, we could provide them with reasonable tests to ensure they properly balanced the interests of students in accessing the content with the interest of publishers in compensation for developing the content. While this wasn’t the first effort to develop fair use standards, it was the clearest, and the first time that such standards were set by a court.
The appeals court rejected this analysis and found that the “District Court did not err in performing a work-by-work analysis of individual instances of alleged infringement in order to determine the need for injunctive relief. However, the District Court did err by giving each of the four fair use factors equal weight, and by treating the four factors mechanistically.”
The appeals court instead called for a return to the holistic analysis. Rejecting the 10 percent or one chapter bright-line rule, the appellate court wrote that “the District Court should have performed this analysis on a work-by-work basis, taking into account whether the amount taken -- qualitatively and quantitatively -- was reasonable in light of the pedagogical purpose of the use and the threat of market substitution.”
The appeals court decision stands on solid precedential ground, and it is not the first court to call for a holistic and case-by-case analysis. While one can defend that decision by looking to the past, the decision is a poor one for those who look to the future. As content becomes more available in varying formats, and our faculty, staff and students are faced with myriad opportunities to pay for content, make fair use, or violate copyrights of authors and creators, the presence of clear standards and easily digestible rules provided higher education with a fighting chance to educate our academic community and encourage proper balancing and fair (but not inappropriate) use of content.
William Patry and Melville Nimmer, the two seminal thinkers in copyright law, each devote hundreds of pages to explaining copyright law. Their sets of volumes, which cost thousands of dollars, provide a comprehensive analysis of fair use and all of its details. But these books and detailed analysis are well outside the scope of what we expect of our faculty members who do not specialize in intellectual property, and our instructors simply do not have the time to conduct an exhaustive analysis of each use, even if they did take the time to learn all the permutations of the fair use analysis. This isn’t to say that they can’t, but to state the reality that they won’t.
Frankly, the dueling decisions in these cases, and the numerous articles and statements by serious copyright scholars on both sides of this analysis, show that even those who steep themselves in the details of fair use can disagree on whether a certain use is fair or violative.
When intellectual property law experts cannot agree, we should not expect our history and math faculty to do justice to the fair use analysis each time.
Instead, faculty will divide into two camps. One group will “throw caution to the wind” and use whatever content they wish in whatever form they desire, hoping never to raise the ire of the publishing companies.
The other, out of an abundance of caution, will self-censor, and fail to make fair use of content for fear that they might step over a line they cannot possibly identify, and can never be certain of until a judge rules one way or the other. Either way, our students and the publishers lose out.
The district court opinion shed some light into the murky swamp of fair use analysis. The Eleventh Circuit opinion dims that light, and threatens to return us to a regime wherein faculty who are not experts in copyright law will either use without consideration of the law or self-censor, diminishing the utility of the concept of fair use.
The Constitution teaches that the purpose of copyright is to “promote the Progress of Science and useful Arts.” The district court opinion found that small excerpts available to students “would further the spread of knowledge.”
Arming faculty with clear rules and standards to properly balance fair use of content would go a long way toward achieving this goal.
Joseph Storch is an attorney in the State University of New York Office of General Counsel. The views expressed here are his own.
“This might be too geeky for a column,” said the subject line of a reader's email, “but just in case …”
It sounded like a challenge, and I took the bait. The topic in question? A new statistical instrument to quantify the degree of open access for scholarly journals. In other words, exactly geeky enough.
The metric can, in principle, be used with journals in any field. At this stage, though, it’s only really being talked about in library and information science (LIS) circles. It represents a challenge to academic librarians to “walk the talk” in regard to their own professional publications. But it's an “inside baseball” discussion that merits attention outside the dugout, given the role of academic librarians in shaping the whole terrain of 21st-century scholarly communication.
That role is crucial but often overlooked. Academic librarians still have the core responsibilities of managing acquisitions and maintaining subscriptions, of course, but must also keep track of the new array (constantly growing, across all disciplines) of digital-format archives, databases, and other repositories. Plus they have the pedagogical task of instructing patrons in how to use new research tools as they become available.
As if that weren’t enough to do, research libraries have been mutating into scholarly publishers in their own right, sometimes in cooperation with their universities’ presses. To borrow a phrase from a recent paper in the journal College & Research Libraries, academic librarians have gone beyond being “gatekeepers of knowledge” -- in charge of its storage and retrieval -- to playing an active role in its promulgation.
Sugimoto et al. sent a survey to their colleagues at 91 academic libraries in the U.S. about how they kept track of developments within library and information science itself. Just over six hundred people filled out all or most of the questionnaire.
The findings reveal a profession that's seriously interested in its own rapidly changing role in scholarly communications: "A vast majority (94.2 percent) consult professional literature" -- defined to include scholarly journals as well as less formal venues such as trade publications and blogs — "on, at the very least, a monthly basis.” More than a quarter of respondents said they did so daily.
Over 80 percent of respondents indicated they followed peer-reviewed LIS journals. More three-quarters kept up with conference papers and proceedings in their field. "Nearly three-quarters," the paper notes, "reported sharing the results of research or reports of best practices" with their colleagues, with more than half (54.2 percent) doing so in peer-reviewed journals."
The other, more granular statistics in the paper are significant, but I want to stress a couple of important big-picture issues suggested by the study. On the one hand, the Indiana researchers describe a kind of virtuous circle. Academic librarians are eager both to produce and to exchange knowledge about their field -- not just to publish but to read one another’s work and to incorporate it into their own activity. (And that is a good thing for the rest of us, prone though we are to taking their efforts for granted.)
The paper also stresses that academic librarians have been advocates for "new (particularly open) systems of scholarly communication." They have shown prescient and growing support for open-access publishing for a number of years now. But here's where things become problematic, because it sounds like the library and information studies people could use some "new (particularly open) systems of scholarly communication” of their own.
Librarians who are also tenure-track faculty need to publish in the field's major peer-reviewed journals. (Forty percent of respondents to the Indiana researchers’ survey were either tenured or on the track.)
But with a prestigious journal, the lag time between between acceptance and publication can run to a year or more. That delay "impede[s] the timeliness and back-and-forth exchanges that are required for effective scholarly communication." And in "technology-related fields ... research may lose its currency if it is not delivered expediently."
Then there is the conundrum assessed in another recent study, Micah Vandergrift and Chealsye Bowley's "Librarian Heal Thyself: A Scholarly Communication Analysis of LIS Journals,” published last month by In the Library With a Lead Pipe, which is probably the best name ever for a peer-reviewed journal. (Vandergrift is a scholarly communications librarian at Florida State University. Bowley is library supervisor at FSU's Florence Study Center in Italy.)
While academic librarians have been strong advocates of open-access publishing, many LIS researchers seem to exempt their own field. One study the authors cite found that half of respondents “cared mostly about publication without considering the policies of the journals in which they published and that only 16 percent had exercised the right to self-archive in the institutional archive.”
Vandegrift and Bowley assembled data on the policies of 111 library and information science journals and found that with a large minority of them (well over a third) the author signs over all copyrights to the publisher — “including but not limited,” as the contracts run, "to the right to publish, republish, transmit, sell, distribute, and otherwise use the [article] in whole or in part … in derivative works throughout the world, in all languages, and in all media of expression now known or later developed.” (You could probably get away with giving the PDF to a close friend, just be very, very quiet about it.)
Just a handful of journals “had direct or implied policies regarding what the author is allowed to do with specific versions of the same work,” including self-archiving in an institutional repository. “A significant percentage of our professional literature,” Vandegrift and Bowley conclude, "is still owned and controlled by commercial publishers whose role in scholarly communication is to maintain ’the scholarly record,’ yes, but also to generate profits at the expense of library budgets by selling our intellectual property back to us.”
A norm doesn’t remain a norm unless nearly everyone involved acquiesces to it. A couple of years ago The Economist referred to the signs of growing unhappiness with the state of scholarly publishing as "The Academic Spring," and Vandegraft and Bowley's paper is part of it.
"A great example of a proactive and outspoken group,” Bowley told me in an email exchange, "was the Journal of Library Administration's Editor-in-Chief Damon Jaggars and entire editorial board who resigned in March 2013 … [over] an author agreement that they thought was "too restrictive and out of step with the expectation of authors.” Vandegrift was among the authors who had requested a Creative Commons license or to retain their copyright — an open-access policy that Taylor & Francis, the journal’s publisher, rejected.
Continuing the effort to bring the publishing practices of LIS researchers into accord with its ethos, Vandegrift and Bowled have created an instrument called the Journal Openness Index. It uses a points system for the various degrees of control over copyright and reuse indicated in a journal’s stated policies. The higher the JOI, the more open-access the publication. Crunching the numbers for several leading LIS titles, the authors find that the journals of professional societies get the highest scores while those from commercial-academic publishers get the lowest, with journals issued by university presses falling somewhere in between.
That is not exactly counterintuitive. But Vandegrift and Bowley offer JOI as a step in the direction of establishing open access as one of the criteria for how colleagues assess the value of scholarship in their own field.
"I imagine all the students that come out of library schools,” Vandegraft said by email, who "go into public librarianship and all of a sudden are cut off from access to the literature that can and should inform the practice of their work, which they were trained to do in library schools where ‘access' is touted as a value. I think we can do better, and I think it will take articles like this one to push librarians to be more proactive and to ask our faculty colleagues to join us."
As for applying JOI to journals in other fields, the idea is feasible but demanding. “Such a project would need proper backing,“ Bowley told me, "whether in the form of a team or institutional and financial support, in order to ensure its long-term upkeep. It could also be partially done through crowdsourcing the information, though. If a professional organization or institution is interested in taking up the project, they would certainly be welcomed to do so.”
I hope their colleagues take them up on it. An informed librarian is a helpful librarian — and it’s a fool who underestimates the value of that.