My library just fielded a question from the Nursing department who, after reading this article from the Chronicle of Higher Education, wanted to know our policy for posting articles and chapters into our Learning Management System (LMS).
While I was drafting a response in private, I thought it would be good to summarize that article and then post my response here for future updating and public re-use.
The article is commentary on the Georgia State University lawsuit where three publishers – Cambridge University Press, Oxford University Press, and Sage Publications – challenged the Georgia State University’s policy that allowed faculty members to upload excerpts from books into their LMS. Thankfully, the court has decided that the vast majority (70/75) of these uses were “Fair Use” and therefore legal under the law.
But, as the article points out, the issue at stake is not just the Georgia State University uses but to clarify (perhaps define?) the legal limits of copyright and fair use as it related to academic libraries. So the case is not limited to those three published and that one university, the results are much more far-reaching.
The publishers’ request for a very broad injunction is not really a surprise. The plaintiffs always intended for the GSU case to establish a precedent that publishers could use to persuade colleges to pay for digital licenses from a company they work with, the Copyright Clearance Center.
So, like the author of this commentary from the Chronicle of Higher Education and likely most academic librarians, I am rooting for GSU in this case and hope that it established precedent that ensures a broad definition of fair use and does not impose time consuming record keeping to track the fair use of copyrighted material.
So, given my thoughts, how should I respond to the faculty inquiry about our policy regarding fair use. I think it’s an opportunity to both establish the broad playing field, underscore the ramifications of this decision, and invite further conversation.
Response to Faculty Inquiry
Thanks for reaching out with a question about copyright and fair use as it relates to articles and book chapters in an academic setting. This is clearly an important and heavily contested issue – one that really precludes a simple policy or rule – so I’m happy to provide some background and some safe best practices and then invite further conversation.
Best Practices for Licensed Content
In general, if you are using electronic resources licensed by the Brandel Library, we encourage you to provide permalinks to the library’s subscription into Moodle. Two main reasons for this policy:
- This is almost always a permitted use within our license agreements. Some database license agreements allow articles to be uploaded directly into a LMS but other licenses expressly forbid this. This prevents this level of confusion and creates a better experience for students and faculty.
- Linking back to the publisher provides the library with vital statistics. Linking this way ensures that we can make collection development decisions that reflect accurate usage – posting a PDF in Moodle prevents the library from tracking usage and impairs our ability to use data to make collection development decisions.
Fair Uses for Non-Licensed Content
This gets slightly more thorny with non-licensed content such as print book chapters, articles from print journals, or articles not available through the library’s online resources. Assuming that such materials are under copyright – which is a safe assumption unless it was published before 1923 or published with a Creative Commons license of some kind – the only legal option to consider is Fair Use.
The US legal code (Section 107 of the Copyright Act) defines four factors to consider with fair use:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Given that we are a university, the purpose and character of the use is educational and therefore the first factor will almost always support fair use. However, all educational uses are not permitted – copying an entire book and distributing it to a class would not be a fair use – and therefore all four factors should be considered.
The Georgia State University ruling seems to indicate that the courts view that using a single chapter from a book as fair use but that multiple chapters from a single book is problematic. However, posting a PDF of a scholarly article in Moodle would be problematic and would likely not quality as a fair use of that material. We are working on building up our electronic reserve capabilities here in the library and should be able to provide more robust services in this area soon.
I will conclude by underscoring a few things:
One issue at stake in the GSU case is how extensive our institutional record keeping needs to be in this area. The publishers want to require extensive recording keeping that GSU (and most schools) would view as very burdensome and a hindrance to fair use.
The proposed injunction would also require university personnel to confirm that every excerpt uploaded to course websites met the fair-use criteria and to keep track of information about the book, which parts were used, the number of total pages, the sources that were consulted to determine whether digital permissions were available, the date of the investigation, the number of students enrolled in the course, and the name of the professor. The university would have to maintain those records for three years.
North Park does not currently require any record keeping and entrusts faculty members to make informed decisions about fair use. The library will continue to follow this case and inform the campus if our record keeping policies need to change.
Second, one reason that fair use is so fuzzy and unclear is that there have not been many cases that have tested the limits of fair use as it related to academic institutions. As an academic library, we want to rigorous defend the rights of authors and content creators by respecting fair use and honoring our licensing agreements with the publishers we work with. On the other hand, we also want to claim the full expression of fair use afforded to us in the law.