Course readers and fair use

Do you compile course readers or course packs for your classes?  Think this is clearly fair use where copyright is concerned?  Well, take a look at this development, taken from Peter Suber’s open access blog:

Are digital course packs fair use?

via Open Access News by Peter Suber on 4/16/08

Katie Hafner, Publishers Sue Georgia State on Digital Reading Matter, New York Times, April 16, 2008.  Excerpt:

Three prominent academic publishers are suing Georgia State University, contending that the school is violating copyright laws by providing course reading material to students in digital format without seeking permission from the publishers or paying licensing fees.

In a complaint filed Tuesday in United States District Court in Atlanta, the publishers — Cambridge University Press, Oxford University Press and Sage Publications — sued four university officials, asserting “systematic, widespread and unauthorized copying and distribution of a vast amount of copyrighted works” by Georgia State, which the university distributes through its Web site.

The lawsuit…may be the first of its kind….

The case centers on so-called course packs, compilations of reading materials from various books and journals. The lawsuit contends that in many cases, professors are providing students with multiple chapters of a given work, in violation of the “fair use” provision of copyright law. The publishers are seeking an order that the defendants secure permissions and pay licensing fees to the copyright owners….

R. Bruce Rich, a partner in the law firm of Weil, Gotshal & Manges, which is representing the plaintiffs, said that…Georgia State officials “indicated their view that all of their practices are covered under the fair use doctrine.” …

Legal precedents exist for cases involving course packs from photocopied material, but experts say the lawsuit against Georgia State is the first to be filed over electronic course packs….

“Publishers have created a market for course materials that is very similar to the market for luxury goods,” said [Susan Crawford, visiting professor at Yale Law School]. “There is only one version available, and at a very high price.” …

“In academic publishing, we need to find the digital services people really want,” said Brewster Kahle, founder of the Internet Archive, a nonprofit digital library based in San Francisco. “I wonder if this will turn out to be an ‘attack the innovator’ suit like the peer-to-peer suits for the music industry. Sometimes a bit of slack can help us all discover a winning formula.”

Comment.  This is not about OA, so I won’t be covering the case in detail.  It’s about TA and the fair use of TA literature.  But there are several reasons why I wanted to cover the first appearance of what will clearly be an important case.  (1) I want to set myself up to blog future twists and turns, or commentary, with strong OA connections.  (2) The case may show how far photocopying precedents will be applied to digitization cases.  (3) The case could change or clarify fair use for non-commercial educational purposes.  Any such change or clarification would affect fair use for TA literature, but also fair use for free online literature that had removed price barriers but not permission barriers.  (4) It may show the weight of the first fair-use factor (“the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes“) relative to the fourth (“the effect of the use upon the potential market for or value of the copyrighted work”), or in short, the relative weight of university interests and publisher interests. 

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