Sharing is caring, or so the saying goes. And when it comes to the ideas behind universities’ use of intellectual property via E-Reserves, publishers are caring more and more about the extent to which their works are being shared.
The Association of American Publishers contacted Duke and several other schools about their use of E-Reserves, some of which the AAP said infringed on its exclusive rights. Use of the material is governed by the “fair use” doctrine which allows schools to use intellectual property for educational purposes without permission. But the limitations of the copyright law are hard to determine.
“It is difficult to tell whether a particular use is fair,” said Henry Cuthbert, associate University counsel. “We were able to demonstrate to the AAP that we make a good faith effort at Duke to work within the constructs of fair use. Duke has taken additional steps to make its good faith effort more visible. Creators and users of intellectual property know that fair use is not an exact science.”
Kevin Smith, scholarly communications officer and lawyer, said the University considers four factors when determining fair use—the purpose of the use, the nature of the work, the amount used and the effect on the market. Usually, the amount of work used is what is in question.
“Obviously we use the works for educational purposes here and we try to limit the length to 10 to 15 percent of a work,” Smith said. “If we feel like something is too long, we go through the Copyright Clearance Center and use their automated system to get permissions to the works.”
But the policies at some universities, like Georgia State University, have not been up to par.
User beware
In April 2008, the AAP released a statement saying, “[a] group of publishers filed suit in federal court [April 15] to stop widespread copyright infringement at Georgia State University.”
The plaintiffs, Cambridge University Press, Oxford University, Inc. and SAGE Publications, Inc., claim in their suit that GSU has participated in “pervasive, flagrant, and ongoing” electronic distribution of copyrighted class readings without permission. The lawsuit, however, does not seek any monetary charges, it simply seeks “injunctive relief” to bring an end to such practices.
Allan Alder, AAP vice president of legal and governmental affairs, said the AAP particularly felt it had to file suit against GSU because university officials refused to engage in discussion with AAP about their use of copyrighted material.
GSU officials said they were unable to comment on the situation.
Adler said the AAP looked into libraries’ E-Reserves policies and processes, and treated all universities in the same way. It found that some schools were using lengthy excerpts from copyrighted works as the complete course curriculum.
Although Adler said not all book publishers are out to make profits, they do make investments in order to publish and cannot continue making those investments if people believe all educational uses of published works constitute fair use.
“Some universities are heading in that direction and we hope they understand that there needs to be a balance,” Adler said. “Universities charge for other educational tools and services through tuition or fees, and we don’t understand why people think they can use copyrighted materials for instructional purposes and expect to never have to pay for any of it. It makes no sense.”
A convenience problem
But for those using E-Reserves, it is hard to deny their convenience.
Christina Grimes, adjunct assistant professor of psychology and neuroscience, uses textbooks in her courses, but also uses E-Reserves to supplement other reading materials.
“They’re helpful when you only want to use small parts of a book,” she said “Most articles are online, so the only thing I use E-Reserves for are chapters or part of a chapter where I wouldn’t ask students to buy an entire book.”
Because E-Reserves are easily available on any computer, sometimes keeping copyright laws in mind is difficult. Junior Sharon Mei said she is usually thinking about the amount of overall reading she has to complete rather than whether she is obtaining it legally.
“To be quite honest, I haven’t given profound thought to whether or not it was legally or ethically sound,” said Mei. “[E-Reserves is] used frequently. We’re assigned about 100 pages of reading a week, sometimes per class.”
As a result, the library keeps a close eye on E-Reserves requests from professors and is sure to address any concerns by organizations like the AAP. Grimes said she trusts librarians to monitor her use and determine whether her readings are within fair use bounds.
But the convenience and the fair use issues are not new. Adler said the AAP is hoping to build on the principles established in lawsuits that publishers won in the 1990s, where courts confirmed the right of copyright owners to obtain permission and payment for the use of excerpts of their works in commercially-produced course packs.
“We want to dispel the notion that copyright law somehow applies differently to the use of copyrighted works in digital form,” Adler said. “Faculty and students need to abide by the same copyright rules that they apply to use of the same works in print form.”
Not only does Duke want to abide by fair use terms to avoid lawsuits, the University also has its own intellectual property to protect.
“I think the key thing to remember is that Duke creates as well as uses intellectual property,” Cuthbert said. “So once we determine that a work is protected and we wish to use that protected work, we make a good faith effort to use the work under established principles.”
The limitations of fair use are nebulous, but many organizations and universities, like Duke, have put policies in place to evaluate all material they wish to use.
Adler said that because fair use operates on a case-by-case basis, the AAP does not have rigid standards for schools to follow in reviewing their use of materials.
“Schools made basic changes in policies reflecting things that were adapted at Cornell,” he said referring to one of the first universities contacted with copyright infringement concerns. “Duke reacted differently, but made some changes. We will continue to watch Duke, and all other universities, to make sure they are abiding by the standards of fair use.”