Are Electronic Course Packs Fair Use?

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From The Authors Guild:

For the past ten years, in the Cambridge University Press v. Albert case, publishers have been battling with Georgia State University over whether the University’s providing its students with digital course packets that include excerpts (often full chapters) of books constituted “fair use.” Under court rulings in prior cases, the law was clear that providing photocopied course packs without a license was not fair use. In this case, however, the district court has already twice sided with Georgia State University, finding fair use on all but a few excerpts, and now the appeals court has again sent the case back down to it. On October 19, 2018, the Eleventh Circuit Court of Appeals vacated the district court’s second decision that the vast majority of Georgia State University’s digital excerpts were fair use, with instructions for how to get it right this time.

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This case has been closely watched by authors, publishers, and universities as a measure for when excerpts for classroom use need to be licensed or not. In the intervening decade, many universities appear to have stopped paying for these types of electronic classroom uses. Authors who used to regularly receive licensing income from classroom use report that that revenue source has dried up in recent years. A favorable outcome in this case would put universities on notice that they should start paying for those uses again.

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One of the major errors that the Eleventh Circuit failed to correct is the district court’s analysis under the fourth factor. The law describes the fourth factor as: “the effect of the use upon the potential market for or value of the copyrighted work.” As such, a fair use is one that should not replace a current or potential market for the work. The Supreme Court instructs courts conducting this analysis to look at the impact on current and potential markets if the use were to become widespread and unrestricted.

Instead, the lower court looked at whether the publishers already had electronic licenses available to universities in 2009 for excerpts for the specific works—an extremely narrow view of an existing market.

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Moreover, the court’s rule that the taking must be so great that the copyright owner no longer has the incentive to write or publish was created out of thin air and would make pretty much any particular use fair use. Few individual uses will be so great that they will be the deciding factor in whether to publisher or not (or write for that matter); it is the cumulative effect of these free uses that makes it increasingly hard to publish material that is not highly commercial.

Of greatest concern to authors and other creators is the fact that the Eleventh Circuit failed to remind the lower court to consider the impact on potentialmarkets from widespread use, and to remember that the relevant market to be considered is broader than a particular format. Whether the publishers had already made the particular works available for e-licensing for e-course packs should be irrelevant – yet the district court chose to focus on that point. Under the court’s analysis here, uses of copyrighted material that eliminate potential markets entirely—and thereby eliminate potential income for the authors as well as the publishers—may qualify as fair uses.

Link to the rest at The Authors Guild