Licence to reproduce and a formula for fair use

North American test cases strive to get to grips with copyright in the modern age. Jon Marcus reports

June 21, 2012

The settlement of a Canadian dispute and a ruling in a closely scrutinised US court case may bring some order to the chaos of interpreting copyright protections for scholarly work in an era of technological flux.

The Association of Universities and Colleges of Canada has negotiated a model licence under which universities will pay a royalty for every full-time student in exchange for being allowed to reproduce copyright-protected material for educational purposes.

And a judge in the southern US state of Georgia has set specific guidelines under which students can be assigned sections of copyrighted scholarly works - widening access in the face of a multimillion-dollar lawsuit brought by publishers.

The Canadian agreement will remain in place until the end of 2015, and “will settle things in the short run”, according to Steve Wills, manager of government relations and legal affairs for the AUCC.

In the US case, universities “got a lot more than the publishers were going to give them”, said Brandon Butler, director of public policy initiatives at the Association of Research Libraries.

The lawsuit was brought against Georgia State University by Cambridge University Press, Oxford University Press and the academic publisher Sage, supported by the Association of American Publishers.

They claimed that Georgia State was violating copyright by providing “electronic reserves” to students - digital copies of sections of copyrighted material that university libraries set aside at the request of academics.

But Judge Orinda Evans ruled that only in a few cases had copyright been infringed, and rather than enjoining universities from using unlicensed course content - as the publishers wanted - she established a complicated formula to determine fair use of scholarly works for educational purposes.

The guidelines prevent universities from making available more than 10 per cent of a copyrighted book with fewer than 10 chapters, and no more than the equivalent of one chapter of a book with more than 10 chapters.

Publishers were understandably unhappy. In a statement, Cambridge University Press says that universities are practising “industrial-scale unauthorized reproduction of our authors’ works”.

They are now seeking an injunction against Georgia State.

Even universities were not entirely satisfied with the guidelines.

“Following the letter of this decision… is going to come at a cost when you tell your professor that he can only take one chapter when there are 50 chapters in the book and two chapters would be better,” Mr Butler said.

The Canadian agreement, too, has not been universally accepted.

The Newfoundland and Labrador Library Association is among the organisations to come out against it, saying the model licence is too expensive, includes “intrusive and impractical” monitoring requirements and exceeds the provisions of copyright law.

And while both decisions standardise various approaches to using copyrighted work, advances in technology mean that other disputes in the area continue.

“This decision is about chapters from scholarly books,” said Mr Butler. “[But] what should be the rule for films, songs, magazine articles or newspaper clippings? We just don’t know.”

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