C OPYRIGHT IN THE D IGITAL A GE : C OPYRIGHT IN THE D IGITAL A GE : T HE I MPLICATIONS OF C AMBRIDGE U NIVERSITY P RESS V. B ECKER ON F AIR U SE AND E- RESERVES

G ROUND B REAKING C ASE First Time Before a court : Is it copyright infringement if a nonprofit institution makes digital copies for the classroom for a nonprofit educational purpose? In 350 pages the court answered with a powerful, yet qualified—no !

S HORT L EGAL H ISTORY OF F AIR U SE Article 1 of the Constitution “promote progress in the Arts and Sciences” Fair Use Who owned George Washington’s Biography? Copyright Act of U.S.C. § “ original [work] of authorship fixed in any tangible medium of expression” § 102 For Infringement: Original Creative Work Valid Copyright Copied without Permission 17 U.S.C. § 107 Fair Use Allow a defense for certain productive types of use Balance the hardline of the copyright statute Meant to be a “flexible” standard

The fair use of a copyrighted work, including such use by reproduction in copies… for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes ; (2)the nature of the copyrighted work ; (3) the 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.

A LITTLE BACKGROUND ON THE C ASE In 2008 Cambridge University Press, Oxford University Press, and Sage Publications Claimed “widespread systematic violation” of Publishers’ copyrighted materials GSU maintained a typical e-reserve: ERES Accessible to students website or syllabi hyperlink Excerpts of Books 2009 Updated Copyright Policy Faculty Training, Fair use Checklist, Limited to students enrolled for current semester

T RIAL o Funded by Copyright Clearance Center (CCC) o May 17, 2011 Sued GSU president and Board of Regents  Ex Parte Young  Narrow exception to the Sovereign Immunity in the 11 th Amendment  State Official must be violating Federal Law  Injunctive relief (forced to stop acting) o Of the 99 claims- reduced to 75 May 11, 2012:Judge Orinda Evans Opinion 75 only 5 excerpts infringed

B RIEF NOTE ON T RANSFORMATIVE U SE & B RIGHT L INES Campbell v. Acuff Rose Transformative Use: creating something new with a further propose or different character Motivation and Meaning Social benefit “Heart of Fair Use” Not a derivative Example: Jane Austen Zombies= Transformative Pride and Prejudice the sequel= Derivative Powerful Finding All other factors generally fall in line with Fair Use Avoid Bright Line Presumptive Categories Weigh all Four Factors equally

C OURTS T WO P RONG ANALYSIS OF THE C LAIMS 1. Was there Copyright Infringement Did the defendants own the copyrighted work? Major issue in collected works Were the licenses owned by the CCC? Did the students view the e-reserve digital copy? De minimis 2. Four Factors Applied

W HAT WERE THE ARGUMENTS : F ACTOR 1 THE PURPOSE AND CHARACTER OF THE USE Publishers Factor 1:Mirror- Image Copies are not transformative: see Course Pack Cases GSU Factor 1: Type of use covered in preamble- copying for the classroom and transformative The Court: Not transformative Nonprofit educational digital copies- course pack cases don’t apply Favors GSU

W HAT WERE THE ARGUMENTS : F ACTOR 2- N ATURE OF THE C OPYRIGHTED W ORK Publishers Factor 2: These are extremely difficult and tedious works to produce-research and time GSU Factor 2: Works were intended to inform and educate The Court: Original works, yes Rejected “sweat of the brow” argument Factual/Academic works closer to fair use Favors GSU

W HAT WERE THE ARGUMENTS : F ACTOR 3: A MOUNT AND S UBSTANTIALITY OF U SE IN R ELATION TO THE W HOLE Publishers Factor 3: Far exceeds Classroom Guidelines (brevity, spontaneity, cumulative effect) Took the “heart of the work” Whole= only text within chapters Chapters written by different authors in a complied work are whole works unto themselves GSU Factor 3: Classroom Guidelines never codified Use was reasonable in relation to the whole Whole= all the written work including title pages, preface, TOC etc…

W HAT WERE THE ARGUMENTS : F ACTOR 3: A MOUNT AND S UBSTANTIALITY OF U SE IN R ELATION TO THE W HOLE CONT…. The Court: BRIGHT LINE RULE Chapters written by different authors in compiled work not a whole work unto itself- untimely The whole constitutes all of the written work Average GSU use was 9.6% “Sufficiently Small” use 10% of a less than 10 chapter book 1 chapter of a more than 10 chapter book License must be attained, if— Reasonably Available for a Reasonable Price Narrowly tailored to fill a gap in the curriculum Favors GSU Potential to Favor Plaintiffs

W HAT WERE THE ARGUMENTS : F ACTOR 4 M ARKET E FFECT Publishers Factor 4: if e-reserves are not forced to purchase licenses reduce the value of the work Reduce potential market for digital licenses will put them out of business-no-one will buy books GSU Factor 4: Minimal lost profit only around 1% of total revenue Academics are going to continue to write The Court: An excerpt can never supplant the whole SHOW ME THE MONEY Where license available possible harm Mostly Favors GSU

O PINION GSU Wins Judge Evans awards attorney fees to GSU over $3 million Publishers- disappointed and improper analysis especially on Factor 3 and Factor 4 Appealed to Eleventh Circuit Court of Appeals…

W HAT DOES C AMBRIDGE MEAN FOR L IBRARIES Time to really look at Fair Use Policy and E- reserve guidelines- Be Purposeful SURPRISE ON TRANSFORMATION!! Although still ruled Factor 1 favored Libraries This has potential for development No Surprise on Academic/ Scholarly Work Strong rejection of it as creative Factor 3- Bright Line Ratio-Big Upset!! License requirement oddly counterintuitive to Fair Use Nice- numeric guideline to professors, anything over bad for libraries Factor 4 – given strong weight- usually would favor publishers, but NO MARKET!

W HAT A BOUT A UTHORS G UILD I NC. V. H ATHI T RUST ? HathiTrust Digital database established by a consortium of University Research Libraries in partnership with Google to digitize and make electronically available printed works More where Copyright Scholars have predicted fair use is going Focuses on transformative use- re-contextualize whole books copied and put into a digital database= transformative use Search Function in a Digital copy Available to Disabled individuals including the Blind In line with the purposes of Copyright-Progress in the Arts and Sciences

B ALANCING THE C ASES Conservative Reading Focuses on Bright Line & Licenses Market Analysis Article 1 Purposes Liberal Reading Focuses on Transformative Use Re-purposing Use Search ADA CambridgeHathiTrust

Q UESTION AND A NSWERS