Cambridge University Press filed a brief this month appealing the 2011 e-reserves lawsuit against Georgia State, continuing a long and arduous copyright battle on how much online content is of fair use.
The brief, rejecting Judge Orinda Evans decision in favor of Georgia State, may possibly be backed by the U.S. Department of Justice, which has requested some time to file a separate amicus brief in favor of Cambridge University Press. Academic librarians worry that the government will threaten fair use of online educational materials through sites like Desire2Learn if it sides with the publishers.
Associate Dean of the University library, Laura Burtle, says Georgia State will file a response within the next couple of months.
“I feel good about it,” she said. “We certainly have a strong case… we believe what we are doing is fair use.”
A little less than three years ago after declaring administrators were “copying” and “distributing” online material to students for free, Cambridge University Press sued Georgia State University for copyright infringement.
President Mark Becker, on behalf of the school, argued that Georgia State could use Cambridge University Press copyrighted material under the fair use exemption, which allows copyrighted works to be used strictly for informational and educational purposes.
Moreover, he added that although copyright law protects intellectual property and defends authors and their expression of ideas, the progress clause under the U.S. Constitution also encourages others to “build freely” upon those ideas within the boundaries of fair use. In other words, although the constitution protects freedom of speech and expression, it allows the idea behind that speech or expression to be used for research and teaching purposes, according to the Fair Use Doctrine in the 1976 Copyright Act.
When claiming exemption under the Fair Use Doctrine, the court considers four main principles: 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.
In her final decision, Evans set a limit of ten percent, or one chapter, for the total amount of copyrighted work allowable to students and found 70 out of the 75 copyright cases to have been of fair use. By providing a more detailed description of digital copyright laws and further defining their online boundaries, Evans’ 360-page decision set an unprecedented legal standard on how much copyrighted work could be used by an educational institution.
Yet, senior communications major Daniel Martini thinks this is not enough.
“10 percent is slim,” he said. “Why keep any amount of creative information away from students?”
Martini added that corporations shouldn’t “sweat the small stuff” by going after educational institutions.
But they are and so is the government. Now that the department of justice is motioning to take action, Georgia State could potentially be in violation of copyright laws by the closing of the next case.
As more and more printed published material like books and magazines are uploaded onto computers, cell phones, iPads and other technological devices, copyright law will lag behind, forced to wait for new cases in order to amend the law.
But as digital material increases, students will be forced to use more online content for their class work, making copyright law cases more imminent.
The U.S. Court of Appeals for the 11th Circuit will hear the case after all appeal briefs are filed sometime this year. Considering the courts most recent copyright case was in 2001, Burtle finds it difficult to predict how this court will react, especially now that the government is stepping in.
“Georgia State has always been very careful and conscious,” she said. “We will not agree to their [current] standards.”
