COPYCENSE

This article discusses the impact of a the recent federal district court decision [pdf] that, for the first time, provides colleges and university with some guidance on the use of copyrighted works for instructional purposes.

Case Summary

In April 2008, Cambridge University Press, Sage Publications and Oxford University Press sued officials at Georgia State University (“GSU”), claiming they were responsible for copyright infringement. The publishers’ complaint arose from Georgia State’s practice of allowing faculty to use university networks and university library E-reserves systems to copy and distribute book excerpts to students without paying licensing fees.

Officials for GSU, a public university, claimed that the creation and use of the unlicensed copies were allowable pursuant to the fair use doctrine, and therefore not copyright infringement. The officials also responded that the sovereign immunity doctrine precluded GSU or its officials from copyright infringement liability.

Judge Orinda D. Evans ruled May 11, 2012, that GSU professors had committed five copyright infringements from four of the publishers’ titles. The publishers had alleged 75 copyright infringement claims. The publishers will file within 20 days their proposed injunction.

Timeline

April 15, 2008: Three academic publishers — two non-profit, one for-profit — sue officials from Georgia State University, a public university, in an Atlanta federal court. The case is Cambridge University Press, et al. v. Becker, et al., Civ. Action No. 1:o8-CV-1425-ODE. The judge is The Honorable Orinda Dale Evans.

December 15, 2008: Publishers amend their complaint to claim that the members of the Board of Regents of the University System of Georgia were responsible for the alleged infringements at Georgia State because of the Board’s supervisory authority over the University system. Defendant Georgia State officials continued to claim the alleged infringements were excused by the fair use defense, and that the Board held no liability because of the sovereign immunity doctrine.

December 2008: The University System of Georgia announced the formation of a committee to review GSU’s then-existing copyright policy, The Regents Guide to Copyright.

February 17, 2009: The University System’s committee announces a new copyright policy has become effective.  The new policy required that each professor who wanted to post an excerpt of copyrighted material on GSU’s E-reserves system  to complete a fair use checklist to determine whether the proposed use qualified as a fair use.

September 30, 2010: Judge Orinda D. Evans issued a pre-trial ruling that dismissed the publishers’ direct and vicarious copyright infringement claims against GSU officials. Judge Evans narrowed the trial issues to a question of whether GSU officials could be held liable for contributory copyright infringement. The contributory infringement claim would assess whether the new University System copyright policy caused professors to commit copyright infringement.

May 17, 2011: The trial begins in an Atlanta courtroom. Officials from the publishers; Copyright Clearance Center; the University System of Georgia; Georgia State (including its president; dean of libraries; E-reserves librarian; and more than a dozen professors) testified. Testimony ended June 7, 2011.

May 11, 2012: Judge Evans issues her ruling [pdf], which totals 350 pages.

Impact

Precedent: While this case is binding legal precedent only in Georgia and has only persuasive authority outside Georgia, it will have national impact because it is the first copyright decision that directly addresses use of protected works in non-profit higher education, and it is the first to expressly analyze the extent to which fair use will (or will not) apply within this context.

Policy: Judge Evans’ decision makes clear that colleges and universities who have a copyright policy that governs use of protected works for educational purposes will be held responsible for the policy’s contents, and for educating its community about proper adherence to that policy. Further, Judge Evans’ decision makes it clear that faculty’s actions can be determined to be infringing if their college or university has a copyright policy, but the faculty member fails to comply with that copyright policy.

Publishing: In order to make a claim for copyright infringement, a plaintiff must prove (a) it owns the copyright to the work in question, and (b) a defendant copied protected elements from the protected works. In several instances, the publishers could not prove conclusively that they owned the copyright to some of the works they had published: in some cases, copyright registration certificates [pdf] were unavailable, while in others, contracts that would show a transfer of copyright ownership could not be submitted as evidence. Faculty authors should anticipate scholarly publishers will increase the rigor with which editors require contracts signing and copyright transfer before publication, similar to what happened with freelance reporters in the wake of the Supreme Court’s 2001 Tasini decision.