Publishers Lose Dispute Over College Excerpts

ATLANTA (CN) - Georgia State University can keep giving students free access to digital excerpts from copyrighted books, a federal judge ruled, dismissing more than 90 claims by prestigious academic publishers.

The lawsuit from Cambridge University Press, Oxford University Press and Sage Publications marked the first time publishers challenged a university practice of posting excerpts of copyrighted works online for their students.

They set their sights on Georgia State University, which they accused of allowing professors to use materials without getting permission from or paying licensing fees to publishers.

The Copyright Clearance Center, a nonprofit that licenses the copying of excerpts from protected works on behalf of publishers, backed the publishers' 2008 lawsuit, covering some of the litigation expenses.

Georgia State officials denied infringement, invoking the fair-use doctrine, and claimed sovereign immunity and 11th Amendment immunity.

A year after the publishers sued Georgia State, the University System of Georgia adopted a new policy that required professors to fill out a "fair use checklist" for each excerpt of copyrighted material that would appear in the universities' online reading rooms. The policy, which applied to Georgia State and other 34 state schools, took effect on Feb. 17, 2009.

But the publishers claimed the policy was flawed and allowed for continued infringement of their copyrighted materials.

In 2010, a federal judge in Atlanta asked the publishers to prepare a comprehensive list of all claimed infringements, including the title and description of each work and the name of the copyright holder.

The publishers' initial list showed 126 claimed infringements, but the court said it would consider only those claims that postdated the 2009 policy. It also dismissed the publishers' claims of direct infringement and vicarious infringement, but upheld claims of contributory infringement.

That decision said that the defendants, some of whom are members of the University System of Georgia's Board of Regents, could claim sovereign immunity and 11th Amendment protection. The publishers would have to show that the 2009 policy "resulted in ongoing and continuing misuse of the fair use defense," the judge wrote.

In preparation for a nearly month-long trial that began on May 17, 2011, the publishers submitted a revised list that showed 75 claimed infringements.

U.S. District Judge Orinda Evans addressed the remaining claims post-trial.

In a 350-page ruling last month, Evans struck 11th Amendment immunity for the schools because the regents were responsible for the 2009 copyright policy, which may have caused the alleged infringements.

Evans then proceeded to examine the fair-use defense, which allows access to published materials without the consent of the copyright owner, but limits the amount of material that can be used so that it does not diminish the value of the protected work.

There is no precedent for how fair use should apply where copyrighted material is copied by a nonprofit university for educational purposes, the court found.

Evans said that the 2009 policy, which makes professors responsible for determining fair use, significantly reduced the unlicensed copying of the publishers' materials at Georgia State.

Library staff also helps implement the policy by ensuring that professors do not request excessive copying.

Unlicensed copying of excerpts of copyrighted books is a widespread practice at colleges in the United States, some of which allow more liberal unlicensed copying than Georgia State, the court noted.

Georgia State met two of the fair-use provisions because it is a nonprofit educational institution that uses the informational excerpts for a noncommercial purpose, Evans found.

The decision says it is acceptable for schools to make unpaid copies of up to 10 percent of a book with fewer than 10 chapters, or to copy a maximum of one chapter from books with 10 or more chapters.

The 75 excerpts at issue represented, on average, 10.1 percent of the pages in the copyrighted books, and 56 of them involved one chapter or less, the court found.

Evans agreed with Georgia State that the page count should include material such as the table of contents, acknowledgements, the preface and indices, which are part of the work.

"In the absence of judicial precedent concerning the limits of fair use for nonprofit educational uses, colleges and universities have been guessing about the permissible extent of fair use," Evans wrote.

Publishers cannot prohibit professors from using the same chapter in consecutive academic terms, she added, calling the request "an impractical, unnecessary limitation."

Small excerpts will not harm a book's potential market, but universities should pay licensing fees if the Copyright Clearance Center or the publishers make excerpts promptly available at a reasonable price, in digital format, Evans said.

Where digital permissions were available, the defendants' unpaid use of excerpts caused "extremely small, though actual, damage to the value of the books' copyrights," the decision states.

But the court found little risk of widespread abuse because access to the excerpts is limited by password to professors and students in specific courses, for one semester.

"The unpaid use of small excerpts will not discourage academic authors from creating new works, will have no appreciable effect on plaintiffs' ability to publish scholarly works, and will promote the spread of knowledge," Evans wrote.

Publishers failed to prove that Georgia State's unlicensed copying caused any drop in book sales since adoption of the 2009 policy, the decision states.

While the publishers lost about 1 percent of permissions revenue in one year, the costs of licensing at Georgia State would have fallen to already financially burdened students.

"In the context of this case, these holdings are a two-edged sword," Evans wrote. "Allowing use of unpaid small excerpts of copyrighted works by students does help spread knowledge, because it reduces the cost of education, thereby broadening the availability of education. On the other hand, diminished receipts of permissions income by plaintiff-publishers could reduce their ability to publish, thereby diminishing the spread of knowledge."

Ultimately the judge rejected claims that the unpaid fees could force publishers out of business or make them cut back on scholarly publications, noting that permissions income is not a significant percentage of the publishers' overall revenue.

Evans did take issue with the unlicensed use of five excerpts from four different books, and said the 2009 copyright policy did little to prevent violations.

"The court does believe that defendants, in adopting the 2009 policy, tried to comply with the Copyright Act," the judge wrote. "The truth is that fair use principles are notoriously difficult to apply."

Georgia State University President Mark Becker praised the court's ruling. "While the broader implications of this case will be analyzed for weeks and months to come, Georgia State is very pleased to have been a trailblazer in this increasingly complex digital copyright environment," Becker told The Atlanta Journal-Constitution.

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