Wednesday, July 2, 2008

Course packs in the internet age.

Oxford University Press, Cambridge University Press, and Sage Publications sued the Georgia State University in federal court in April, arguing that course readings that professors and librarians disseminated online infringed publishers' copyrights." The complaint is here (pdf).

I am sympathetic to the view of the that the posting of copyrighted materials without permission for educational purposes would be beneficial for students. As the editors of the UCLA Daily Bruin write: "With increased tuition fees, living expenses and constantly looming debt, the last thing students want to dish out more money for is a heavy and overly expensive textbook that they will open once over the course of the quarter to read one paragraph."

But there is serious legal doubt to the legitimacy of the position of Georgia State in the lawsuit. In Princeton University Press v. Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996) , cert. denied, 520 U.S. 1156 (1997),
the U.S. Court of Appeals for the Sixth Circuit held that photocopied "course packs" containing excerpts from copyrighted materials that sound very similar to those being posted on line by your university did NOT constitute fair use. Though there are many ways in which the internet changes the calculus one must apply to questions of fair use, I don't see any particular way Georgia State's actions differ from those of the University of Michigan professors actions in making available to their students photocopied coursepacks consisting of collections of excerpts from copyrighted texts.

Of course, the federal courts in Georgia are not bound to follow the Sixth Circuit's decision in Princeton University Press, but that decision has not proven to be a particularly controversial one with respect to its doctrine. As Stephana Colbert and Oren Griffin explain in "The Impact of Fair Use on Higher Education: a Necessary Exception?", 62 Albany L. Rev. 437, 454-55 (1998): "
the Congress that passed the Copyright Act in 1976 would pretty clearly have thought it unfair for a commercial copyshop to appropriate as much as 30 percent of a copyrighted work without paying the license fee demanded by the copyright holder . . . ."

Neverthless, the issue is "[o]ne of the most contentious issues between libraries and publishers in the digital age . . . ." As Colbert and Griffin point out:
T]he changes in technology and teaching practices that have occurred over the last two decades might conceivably make Congress more sympathetic to the defendants' position today. If the law on this point is to be changed, however, we think the change should be made by Congress and not by the courts.

Thus, while suggesting that [Michigan Document Services had] has legislative support for its conduct, the court left open the possibility that a different result might be forthcoming should Congress revisit the copyright statute. Certainly, technology has had a dramatic impact on virtually every segment of American society, and to think that the application of American copyright law has been unaffected by the advances in technology since 1976 is naive.
See also Melamud, Pursuing Fair Use, Libraries, and Electronic Reserves, 92 Law Libr. J. 157 (2000)(pdf).

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