Georgia on my mind

Readers who have perused my other posts will be aware already of my anti-corporation leanings and my beliefs that copyright should have included in it broad protections for the public's use of works, especially in matters concerning education. People who have been paying attention to copyright at all recently will also have realized that whenever a court case appears pitting a user against a producer, the producer tends to win. Even when it does not go to court, the producers are often able to push enough money and publicity at the violation that the user is forced to settle, and in settling, agree that the publishers are correct (see the Napster Case). In general, the outlook for fair use as a user right has seemed bleak, a sad fact for me and for librarians in general.

So you can imagine that I was unsurprised when I read for this week about the Georgia State vs. Oxford UP, Cambridge UP and Sage (or as it is officially called "Cambridge University Press, et al v. Patton et al"). Briefly, this case was against Georgia's electronic reserve policy, which includes a check list ( seen here ) for professors to use to determine if the work they were putting up on reserve was indeed fair use. The publishers said that the use was too broad, too much was being copied from a single work, and that the check list was biased towards a finding of fair use among professors who did not know enough about copyright to be making the decisions anyway ("Both Sides Angle for Victory in E-Reserve Case" in Publishers Weekly). Of course, I thought, publishers are getting nervous and trying to stop any free use of their work, per usual.

Indeed, it seemed, from an article in the magazine Against the Grain by Stanford G. Thatcher, director of Penn State Press written on behalf of the publishers, that this is exactly what they want to do. Thatcher bases his attack on a set of guidelines called the CONFU guidelines, which were commissioned by President Clinton to deal with electronic material and fair use, but never actually agreed upon. Nonetheless, he takes these basically as law, and argues Georgia should be punished for not complying with them. His points against Georgia basically boil down to two factors: that Georgia did not emphasize that electronic reserves should only be for "supplemental" material so that they do not take the place of course readers and that Georgia did not mention at all that texts should only be used for one term and then permission must be sought for any further use. He says that because of these policies, Georgia's e-reserve causes University Presses' profits to take a hit, which makes them not fall under fair use.

But not only does he say Georgia is wrong and needs to be stopped, but he proposes further changes to policy, which I believe come from a wrong interpretation of fair use, and which worry me in case they become de rigueur due to the publishers being successful in court. For example, he claims that not even first use or deciding to use an article spontaneously would be an excuse for fair use (something specifically allowed in CONFU), as now people can use online access to quickly get permission from the publishers. Because permission can be so easily asked for, there is no reason not to ask and then pay if necessary. He even goes as far as to suggest that students should pay for access to e-reserves, just like they pay for course readers or textbooks. He clearly is aiming in doing away with fair use for electronic reserves entirely. In his reasoning here, he shows, in my opinion, a distinctive misunderstanding of fair use for education. To me, fair use in an educational setting exists so that more knowledge can be built upon by students and teachers, which will hopefully allow for the creation of more original works. It does not exist because right holders were just to hard to get in contact with earlier. Fair use for educational purposes is an intentional action, not an accident. But my personal opinions about such things tend not to be what the court decides.

Instead of Thatcher's version of electronic reserve rights, or even CONFU, I would like to see libraries follow the practices for fair use published by the Association of Research Libraries in 2004, before the Georgia case, but which reflect many of the practices Georgia embraced. For example, they say "limiting e-reserves solely to supplemental readings is not necessary since potential harm to the market is considered regardless of the status of the material" and "if libraries determine that if the first three factors show that use is clearly fair, the fourth factor does not weight as heavily" (fourth factor being market effect of the reserve). In this, these practices push against Thatcher and even CONFU"s guidelines about e-reserve material being only supplemental and the heavy focus on the market as the major determiner of fair use status. But knowing the Georgia case happened after this guide was published, I wanted to know if fear about litigation made library policies both at Georgia and also at the college where I work reflect a stricter sense of fair use than ARL's findings.

So I took a look at University System of Georgia's Guidelines and one place at which I have worked, Edgewood College's Guidelines to see which interpretation, CONFU, Thatcher's, or ARL's, they more closely followed, with a feeling that I already knew the answer.

In this little exercise, my gloom and doom assumptions turned out to be totally wrong. Both policies reflected ARL's findings more than Thatcher's concepts, even Edgewood, which tends to be risk adverse. Both allow core content to be used, though Georgia does mention supplemental content as something that would be in favor of fair use. I should not have been as surprised about this as I was, as I know that at least at UW Madison, electronic reserve material often composes an entire course's reading. It seems that in this at least, the publishers have lost. E-reserves have replaced course packets, and there is no charge for students to use them, even if they are core resources. In addition, the reuse of a resource from term to term is not mentioned in either policy, though both do mention that they delete electronic copies once the term is over. This lack of mention makes me believe that both of them turn a blind eye to the activity, or at least do not expressly forbid it. In this as well, then, the publishers have not succeeded in scaring libraries into submission.

Unlike most of my posts then, I shall end this one on an optimistic, upbeat note. In this battle for electronic reserves, it looks like the publishers and their court case are not having the desired effect of fear and suppression of practices as they might have hoped Practices the ARL found being used in 2004 are still being used, and libraries still actively exercise their right of fair use. I am proud of both of the schools whose policies I examined for not backing down in their rights, and in their role of promoting learning through such services. I hope that no matter which way the court case is decided, librarians continue to exercise their fair use rights, and if the court decides against it, fight back.