Georgia State Electronic Reserves and Copyright Ruling

Guest Blog by John Schlipp,[*] Intellectual Property Librarian, W. Frank Steely Library; schlippj1@nku.edu 

Not too long ago, headlines in the news reported of college students and homemakers taken to court by the recording industry for noncommercial file sharing of a small number of MP3 music files. Although officially illegal, some of these cases could be considered small change compared to piracy and copyright infringement issues of greater magnitude. Please understand that I am not condoning piracy. However, from a business point of view, one might question the return on investment by the Recording Industry Association of America for pursuing minor infringements. Indeed, discussions from intellectual property scholarly communities have debated whether these and other types of alleged infringements constitute piracy or fair use. One need only read the headlines to see that academia is not immune from the copyright piracy debate: “Are College Professors and Librarians Digital Pirates?;” “Professors get ‘F’ in copyright protection knowledge;”  and most recently a triumph for educators as, “Judge sides with GSU on copyright fight.”

As an intellectual property librarian directing the new IPAC (Intellectual Property Awareness Center) at Northern Kentucky University’s Steely Library, I have been following Cambridge University Press et al. v. Patton et al, the GSU (Georgia State University) case, since its inception in 2008.[i] For those unfamiliar, this case deals with the practice of librarians posting class readings for instructors as electronic reserves on password restricted content management sites such as Blackboard and determining at what point such postings are fair use rather than infringement. On May 11 2012, Judge Orinda Evans of the U.S. District Court for the Northern District of Georgia ruled that virtually the entire alleged infringements in this case were fair use. This is a victory largely for librarians, educators, and fair use, but a defeat for publishers.  Since librarians and educators must still work with publishers for the content they need, it is almost certain that the publishers will appeal this case.

I coach instructors about fair use and copyright in the classroom, as well as copyright from a creator point of view. Usually their preconceived beliefs about fair use and instruction range from excessively cautious (as they are intimidated by some misleading copyright notices posted by publishers and other media producers) to overly oblivious (believing that everything copied is fair use for education). Moderation is the exception. This tells us that, on the one hand a larger group of educators relinquish much of their lawful fair use opportunities for instruction, while others defy the fair use doctrine which could result in copyright infringement.[ii]

Kenneth Crews (legal copyright expert) and author of Copyright Law for Librarians and Educators, suggests that we can only benefit from fair use by taking control and understanding our legal rights as copyright owners and copyright users. With this awareness, we can be familiar with alternatives that the law allows and make choices about copyright that best advances our objectives as teachers, learners, and information professionals.[iii]

The doctrine of fair use within Section 107 U.S. Copyright Law, allows an unspecified limited reproduction of copyrighted materials related to classroom use. Those of us in education often refer to fair use guides from authorities such as Kenneth Crews at the Copyright Advisory Office of Columbia University Libraries http://copyright.columbia.edu/copyright/ which provides a defacto checklist to determine whether or not our educational use is fair use.

How does all of this apply to librarians?  As more college students receive their class supplemental readings from library electronic reserves on online content management systems, such as Blackboard, librarians and faculty are under scrutiny from publishers. A growing number of educators have gone so far as to create and promote Open Access journals (often with Creative Commons notices) to share their works for classroom instruction or other noncommercial applications. Textbooks may not be too far behind this new distribution model as discussed in an opinion piece targeted to Academic Publishers about Open Access in the Chronicle of Higher Education in April 2012 @ http://chronicle.com/article/Hot-Type-An-Open-Letter-to/131397/ .

Guidelines have existed to support librarians and educators since 1976 when the Agreement of Guidelines for Classroom Copying in Not-for-Profit Educational Instructions with Respect to Books and Periodicals were published in House Report 94-1476. Since then other guidelines, such as the American Library Association’s Model Policy Concerning College and University Photocopying for Classroom, Research and Library Reserve Use in 1982 and the 1991 federal court decision in Basic Books, Inc. v. Kino’s Graphic Corp., 758 F. Supp. 1522, 1526 (S.D.N.Y. 1991), have codified conservative safe harbors which most educators follow. Other guidelines for the digital world have also been introduced, such as CONFU (Conference on Fair Use associated with a 1995 report on the National Information Infrastructure), which never garnered the same support from publishers as the former guidelines.
A new Code of Best Practices in Fair Use for Academic and Research Libraries from the Association of Research Libraries (ARL) was introduced earlier this year. It crafts a new guide to address digital needs unthought-of when the earlier guidelines were created. Many fair use scholars have criticized the previous guidelines as too restrictive for educational use, whereas others argue that the newer Code is too laissez-faire. Hopefully the recent GSU case decision and the Code will offer educators a basis to make an informed decision and risk analysis that considers the law’s fair use flexibility for librarian and educators.

Why should educators be concerned about copyright and other intellectual property issues?

  • Virtual presence on the Web places small-to-midsized colleges at risk with larger institutions of higher education.
  • Educators must set an example for our students to respect intellectual property.
  • To protect our colleges and faculty/staff from lawsuits and other legal inconveniences.
  • The awareness of copyright compliancy with fair use (and the TEACH Act for online courses) are good preventive measures for all of us, including our students.
  • Respecting copyright ensures resource innovation and protection for both creators and consumers of copyrighted works.

To foster these points, more colleges are offering their faculty and students support with institutes such as the NKU Chase Law & Informatics Institute and Steely Library’s new IPAC. The IPAC will educate creators and consumers of intellectual property about issues such as copyright & fair use, plagiarism, patents & trademarks, and other resources and support related to the legal and ethical aspects surrounding intellectual property. Diverse campus and community constituents served may include, but are not limited to, students, educational instructors and librarians, authors and researchers, entrepreneurs and small business owners, inventors and scientists, musicians, visual artists, and others.

The new IPAC plans to accomplish its mission by providing associated information resources, workshops, conferences, an online intellectual property discussion support group, social networking access, and basic updates on legal intellectual property developments to support educators and the community. Why not help us with a survey as we build our new IPAC at Steely Library? Your input and specific needs count.  Tell us what programs and resources would support your intellectual property awareness needs. See http://creativethinking.nku.edu/ to complete our brief survey. As educators, we continue to inform our campuses and regional communities about the dual aspects of intellectual property (as creators and as consumers). In doing so, we build awareness and respect for the intellectual works of everyone.


[i]  Howard, Jennifer, “Publishers Sue Georgia State U. for Copyright Infringement,” Chronicle of Higher Education, April 16, 2008, http://chronicle.com/article/Publishers-Sue-Georgia-State/40816, accessed May 17 2012. There are two other federal copyright cases which librarians and educators are also watching very closely: Association For Information Mediat and Equipment et al v. The Regents of The University of California et al; and Authors Guild et al. v. HathiTrust et al. These cases deal with similar instructional issues which involve video content streaming for classroom support and a public accessible virtual collection of over nine million digitized works from college libraries. Including GSU, these cases will ultimately affect how educators utilize fair use and follow related copyright laws in the classroom.

[ii] John Schlipp, “Coaching Teaching Faculty: Copyright Awareness Programs in Academic Libraries,” Kentucky Libraries 72 (Summer 2008): 18-22.

[iii] Kenneth D. Crews, Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions,(Chicago: American Library Association, 2012), page xii.

[*] John Schlipp is an Associate Professor of Library Services and manager of the new IPAC (Intellectual Property Awareness Center) at Steely Library, Northern Kentucky University (Highland Heights). Formerly he served as Patent & Trademark Librarian at the Public Library of Cincinnati. Prior to receiving his MSLS from the University of Kentucky in 2000, he worked in the communications industry for 15 years. Schlipp’s contributions include: articles and book reviews; an intellectual property awareness program for teens and young adults entitled Creative Thinking; associate editor of the Encyclopedia of Northern Kentucky (University Press of Kentucky, 2009), and a chapter in the textbook Distributed Learning Librarianship (Sharon Almquist, ed., Libraries Unlimited, 2011).

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