An Electronic Reserve Identity Crisis: The Next Challenge To Educational Fair Use

In May 2011, a bench trial commenced in the Federal District Court for Northern Georgia which may change the way college libraries everywhere operate. In 2008, Academic publishers Cambridge University Press, Oxford University Press, and Sage Publications filed a complaint against Georgia State University, alleging copyright infringement on a grand scale by the school’s library system. No doubt with an eye towards public relations, the plaintiffs are not looking for money, but for a systemic change to the University’s copyright policy. Understood broadly, the change the publishers seek, if endorsed by the court, could change the use of electronic reserves at university libraries across the country.

The fair use provision of the Copyright Act, 17 U.S.C. § 107, expressly provides that the copying of a work is more likely to be a “fair use” when it is for a “non-profit educational purpose.” Up through the 1980’s, it was assumed by academics that this provision protected the creation of college “course packets,” that is, anthologies of photocopied textbook chapters or other written materials. However, a series of cases brought by the publishing industry in the 1990’s forever disabused academia of this misconception and made it clear that the creation of course packets, without permission by the authors or publishers, was in most cases infringement and not fair use. Indeed, the educational nature of a use is only one of several fair use factors, and the Supreme Court has held that “the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement.”

Enter the electronic reserve, the publishing industry’s new bogey man. In the traditional paper library reserve, a professor made one or two photocopies of a chapter available for temporary borrowing through the campus library, usually as an optional reading assignment. Such traditional reserves are generally viewed as non-infringing due to fair use principles and the library exemptions to copyright infringement contained in 17 U.S.C § 108. However, digital technology has complicated this analysis. At Georgia State and elsewhere, professors can now make reading material available on-line through the library’s electronic reserve system or on individual class websites. The University allows each professor to determine for herself whether the posting of this material is fair use, based in part on a “Fair Use Checklist”, the utility and legality of which the parties hotly dispute.

What cannot be in serious dispute, however, is that the ability to put documents on electronic reserve is a game changer in the college library context. Now, instead of waiting in line for one or two available photocopies, all students can get a copy at once. Instead of having to return the photocopy to the library, a student can simply retain it forever. And, most galling to the publishing industry, instead of paying for a course packet, students get the same material for free.

So what is an electronic reserve? Is it just like a paper reserve, only in a different format? Or is it more akin (and being used as a substitute for) the course packet? If the former, Georgia State University should not have change its policy and the days of the course packets will be numbered as other institutions follow suit. If the latter, college copyright policies across the country, as well as electronic reserve guidelines issued by such groups as the American Library Association, will likely require radical alteration.

The Georgia case may or may not answer these questions. It is possible that the Court will decide the matter on narrow grounds which do not fully tackle the fair use issue or provide guidance for other institutions. Additionally, Georgia State allegedly engaged in some practices that may not be common to all educational institutions: encouraging professors to use electronic reserves as a substitute for course packets, copying multiple chapters of the same book or excerpts hundreds of pages long, maintaining copies of documents in the electronic reserve system instead of terminating the reserve at the end of the semester, allowing students to download and keep copies, delegating fair use decisions to individual professors with little or no institutional oversight, and in general creating a policy so lax that one commentator described it as “just say yes to everything.” But whether or not this case shows the way for the rest of academia, the electronic reserve genie is now out of the bottle, and this controversy will no doubt spawn additional litigation until the issue is resolved.

5 thoughts on “An Electronic Reserve Identity Crisis: The Next Challenge To Educational Fair Use

  1. Thanks for this careful analysis of the issues underlying the case. What worries me is not so much the nature of the case itself, but the proposed injunction that the plaintiffs are requesting if they win the case, which seems to extend beyond the facts of the case. Please see this analysis of the proposed injunction:
    http://blogs.library.duke.edu/scholcomm/2011/05/13/a-nightmare-scenario-for-higher-education/
    I’d be curious to hear your thoughts on this.

  2. UPDATE: At the end of the day on June 7, 2011, the trial in this matter concluded. The parties have been ordered to submit briefs and reply briefs by July 15 and July 22, 2011. Sometime after that, the Court will render a decision. We will provide an update and analysis when there is something new to report.

  3. UPDATE: At the end of the day on June 7, 2011, the trial in this matter concluded. The parties have been ordered to submit briefs and reply briefs by July 15 and July 22, 2011. Sometime after that, the Court will render a decision. We will provide an update and analysis when there is something new to report.

  4. Kerim,
    Thanks for your comment! The proposed order by the plaintiffs is indeed causing much debate. Here’s a little background that might put that proposal in context:
    Back in 1976, a group made up of authors, publishers and educational institutions came up with a series of guidelines for how fair use principles should apply to copies made by educators for classroom use. Basically, if a teacher wants to make an unauthorized copy of a copyrighted work for distribution in the classroom, the copying must be (A) only of a small portion of the work; (B) spontaneous, i.e., the teacher didn’t plan far in advance to use the material; and (C) not so widespread and systematic as to have the effect of replacing the market for the work. These guidelines did not become law, but they were reported to Congress and redistributed by the Copyright Office (see http://www.copyright.gov/circs/circ21.pdf).
    In the 1990’s publishers and academics failed to agree on a corresponding set of guidelines for electronic reserves (see http://www.uspto.gov/web/offices/dcom/olia/confu/confurep.pdf), leaving academia with little legal guidance. Organizations like the ALA have published position statements to fill the vacuum, but there is no guarantee that adhering to those statements will be sufficient.
    What the plaintiffs are doing in this case is in essence suggesting that the classroom guidelines be transplanted to the electronic reserve context by judicial fiat, at least for Georgia State. Academics and librarians, many of whom find the classroom guidelines already too strict and hopelessly outdated, argue that the classroom guidelines are irrelevant to the appropriate scope of fair use for academic libraries and electronic reserves. Exacerbating the debate, the plaintiffs’ proposal also would add extra burdens not found in the classroom guidelines, including a certification requirement and what appears to be an imposition of vicarious liability beyond what the case law might otherwise support.

  5. Pingback: Georgia State Academic Fair Use Decision Vacated by 11th Circuit: A (Relatively) Quick Read for the Busy Practitioner | Trademark and Copyright Law

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