Copyright WHAT DOES THIS MEAN IN TODAY’S CLASSROOM CAROLE MCNALL, ANN TENGLUND, AND KARLA BRIGHT

University Copyright Policy The copyright law of the United States governs the making of photocopies or other reproductions of copyrighted material. St. Bonaventure University respects that law, and requires all Administrative Staff, Faculty, and other University personnel to do likewise. The best way to comply is to seek permission of the copyright owner when reproduction is desirable. Aware also of the concept of fair use, the University requires compliance with the minimum guideline agreements, a copy of which has been forwarded to all University personnel. Additional copies are on file in the Office of Human Resources, the Library, and various other offices on campus. Please be advised that the University will enforce this policy.

TEACH Act  Signed into law in 2002 as the Technology, Education, and Copyright Harmonization Act  Generally digital & print works are treated the same, but copyright requirements for online distance learning are a little more liberal to balance the needs of students with the rights of copyright holders  Covers use of materials in distance learning courses, no matter where the student is  Use of the materials is restricted to class activities and to enrolled class members  Must not include what would normally be a textbook that would have been purchased  Only reasonable and limited portions are allowed, just as in an in-person classroom  A notice of copyright should be posted on the materials

The TEACH Act does not cover  Electronic reserve, course packs, or Interlibrary Loan—these activities should use normal procedures  Converting material from analog to digital except when only a portion is used and a digital work is not available  Does not supersede fair use or existing licensing agreements  Doing anything online that would not be permissible in an in-person setting

University of Georgia Case

Major Players in the Suit Filed in 2008  Oxford University Press  Cambridge University Press  SAGE Publications  With support from the Association of American Publishers  Georgia State University President  Provost  Associate Provost for Technology  Dean of libraries

The charge  “Pervasive, flagrant, and ongoing unauthorized distribution of copyrighted material”  Electronic course reserves  Learning management system—Blackboard and WebCT  Departmental websites  Hyperlinked online syllabi available on websites  As of February 19, 2008, the suit said the e-reserve system contained “over 6,700 total works available for some 600-plus courses... invited students to download, view, and print such materials without permission of the copyright holder.”  Attacked the university’s “blanket presumption of fair use” in higher education  Seeking injunctive relief only and no other monetary damages

9/30/2010 Ruling GSU cannot be held liable because  GSU as an entity is not capable of copying protected works or making fair use determinations  There is no evidence that GSU as an entity profited, or saved money, from their employees’ alleged infringing activities GSU may be held liable for  Infringement that arises from an improper or illegal implementation of their copyright policy as amended in 2009

GSU: We didn’t do it The University  Employees were responsible Faculty and staff  We did not know the ins and outs of copyright  We do not have a budget to pay for materials for our courses or reserve systems  Note how the publishers preferred to sue a university system rather than individual faculty and staff

5/11/12:Victory on all but 5 counts for GSU  99 cases of alleged infringement were initially presented  Only 48 cases were actually considered because of technicalities, including record-keeping  43 cases were held to be fair use or the copying was considered de minimus (no one read the posted work)  5 cases were ruled as likely infringement  Publishers were ordered to cover court and legal costs

Clearer line  Former guidelines for e-reserves allowed more copying  Now—”decidedly small” works are allowed—less than 10% of a work that is less than 10 chapters, or one full chapter for books over 10 chapters  Extracts should not be readily available to be licensed digitally, or if they are, they must be reasonably priced  Placed a quantitative rather than a qualitative emphasis on fair use  Required only that universities enforce their own policies, use fair use checklists, and ensure that access is limited to enrolled students only

Appeals  On 10/29/2012, publisher plaintiffs deposited $3,271,275 into the Commercial Registry of the Court for the Northern District of Georgia upon judge’s orders, to be held in escrow until appeals are exhausted  Appeals from publishers’ side on major findings of the case

10/17/2014: Publishers win key battle but libraries may win war  11 th U.S. Circuit Court of Appeals reversed some of the findings but did not directly rule against GSU  Librarians had long considered this suit as a public move against broader fair use  Appeals court did find errors in opinion and process, but mostly upheld the ruling  Appeals court thought the overall approach was too quantitative, noting that fair use factors are not all equal and some parts are more important than others, depending upon the nature of the work in question.  Appeals court agreed that fair use determinations needed to consider the “heart of the work”  Appeals court rejected the 10% guide—worried it could become a de facto safe harbor  Appeals court comments unlikely to substantially change the outcome

It’s Still Not Over—Moving Forward  Neither side wishes to settle  For those of us navigating these seas now:  Whenever possible, use legally licensed resources that you already have access to, such as articles from library databases where you either  Provide the link for students to retrieve the item, or  Require students to find the article themselves  Be mindful of licensing restrictions—some publications are very restrictive, such as Harvard Business Review  Require students to subscribe to services for the duration of your course. Example: For documentary film content, check Netflix, which has a monthly subscription option  Ask a librarian for assistance in finding licensed content  And listen to smart lawyers who are on our side!