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Next Steps in the Georgia State Case

On May 31, 2012, the plaintiffs (i.e., Cambridge University Press, Oxford University Press, and Sage Publications) in the Georgia State University (GSU) electronic reserves case, filed a proposed injunction that would prohibit GSU professors from making unauthorized copies that are not “narrowly tailored to accomplish the instructor’s educational objectives” and do not “constitute the ‘heart of the work’ ” from which they are excerpted.  In addition, the publishers have asked Judge Orinda Evans to mandate that GSU’s revised policy on e-reserves require professors to “investigate the availability of digital permissions before it may determine that a proposed use of an excerpt of a work is protected by the fair use doctrine.” (See the EDUCAUSE Policy Brief for background information on this case.)

In her May 2012 decision, the judge identified the impact of unauthorized copying on the market for a particular work as a crucial factor in determining whether an authorized copy is permissible under the “fair use” exemptions to copyright law.  The fact that there was no easy way for professors to license portions of the works in question strengthened GSU’s position.  However, the publishers say that they have made significant progress in making the availability of digital licenses more widespread as the case was being considered.

By proposing that Georgia State formally prohibit their professors from copying excerpts that qualify as the “heart” of a larger work, the publishers are addressing another sticking point of the judge’s ruling.  In her decision, the judge wrote that unauthorized copies of 10 percent of a work were most likely permissible.  However the publishers, citing another passage in the decision, emphasized that there are exceptions to the 10 percent rule. They wrote, “As the court correctly noted, under the third fair use factor the copying of even very small excerpts may be outside the permissible bounds of fair use if the excerpt is the 'heart' of the copyrighted work.

Here the publishers are asking for relief by requesting that the works either need to be licensed or must meet the judge’s interpretation of fair use in the opinion.  “As a practical matter,” the proposal states, GSU faculty “must be required to investigate the availability of digital permissions before it may determine that a proposed use of an excerpt of a Work is protected by the fair use doctrine.”  The publishers add that such a mandate would not be “burdensome,” because Copyright Clearance Center (CCC) (who was one of the funders of this lawsuit) provides an “easy-to-use” web site.  Compliance requirements would be very strict for GSU.  The proposed order would require, among other things, that:

  • GSU keep records of unlicensed readings for three years after the usage, including details of the “reasonable investigation” of license options mandated above.
  • GSU must ensure faculty are complying with the order and make clear that faculty who do not will face “disciplinary sanctions” and “possible legal action.”
  • No GSU personnel would be allowed to upload anything onto GSU systems without first seeing “on the screen” provisions of the court order.        
  • The GSU Provost would have to certify to the Court that its e-reserve policy is in compliance within 45 days of the order’s approval; and once per semester for the following three years.
  • The publishers have asked the Court to grant them “modest oversight,” of GSU’s e-reserve system. If approved, once per semester, GSU must allow publishers access to its e-reserve system. “Left unmonitored,” the text says, “[GSU's e-reserve system] presents an opportunity for GSU’s instructors to evade compliance with the proposed injunction.”

It is well-known in the academic community that publishers have wanted to monitor e-reserve systems.  If the judge allows that oversight at GSU, it would not only be a significant precedent for publishers; it would also be a source of tension for higher education.  Kevin Smith, Duke University, wrote in his blog, “One thing I can say with confidence.  If the publishers are given the right to poke around in GSU’s course management system, faculty will be outraged, at GSU and elsewhere.”

GSU now has 15 days to respond to this proposal, and then the Judge will decide what she will order.   The publishers also reserve the right to challenge the final order on appeal.

EDUCAUSE will continue to monitor and report on this issue.

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