February 7, 2013 (New York, NY)—Today, AAUP filed an amicus curiae brief supporting the plaintiffs—Cambridge University Press, Oxford University Press, and SAGE Publications—in their appeal to the Eleventh Circuit of the district court decision in Cambridge University Press v. Becker. The full amicus curiae brief, a summary, and the plaintiffs’ brief are all posted here:
University presses and university libraries are part of the same system of higher education and scholarly communication. Both presses and libraries work in service to the same social good—the advancement of knowledge—and both face the same financial pressures caused by the recent economic depression and slow recovery. Moreover, an increasing number of university press directors report to deans of libraries, and press-library collaborations are expanding.
AAUP believes in fair use. We believe robust scholarship depends on the ability of scholars to quote others’ published works for criticism and commentary, and to make transformative uses of others’ work by adding new, copyrightable work of their own. Our members rely on this important copyright principle in deciding when to seek permission to include others’ work in their own publications, and when they can justify that inclusion as a fair use. And we believe in the important role fair use plays in education generally, including enabling teachers to make appropriate use of books and other works in and out of the classroom. The question of appropriate parameters for fair use as publishing and education transition to digital is a complex and important one. AAUP would welcome a decision in the GSU case that helped clarify our understanding of fair use on university networks.
Unfortunately, the district court’s decision does not do that. The court misunderstood both the fundamental purpose of fair use and misapplied the four statutory factors in its fair use analyses, as our brief argues.
A quick summary of the case. The GSU suit, as it is known, was filed in 2008 to contest GSU’s practice of posting copyrighted material on GSU’s electronic reserves systems without clearing permissions, violating the plaintiffs’ copyrights. Among GSU’s defenses was that their practice was permissible as an exercise of fair use, one of the exceptions to the exclusive rights of copyright owners.
The implications of GSU’s practices for AAUP’s members are broad. Testimony during trial established that during 2009 (the period on which the trial focused) GSU was clearing no permissions with any publisher for posting substantial excerpts from scholarly books on their e-reserves systems. And despite the new policy GSU put in place in response to this suit, even the district court agreed that GSU continued to infringe the publishers’ and their authors’ rights after the new policy was implemented. GSU’s e-reserves practices thus bear on the copyright rights of all the members of AAUP whose work was, or may in the future be, taken without permission by the university. That’s the first issue of concern for us.
Second, testimony at trial also showed that although the university failed to clear permissions for e-reserves, it was continuing to clear—and where necessary, pay for—permission to use equivalent material in the dwindling number of printed course-packs the university also made available to students. This practice of treating the copyrighted material differently depending on the format—print on paper versus electronic—and the fact that GSU, rather than a commercial copy shop acting on GSU’s behalf, did the actual copying, is not only illogical, but also violates the settled principle in copyright law of media neutrality: that copyright protection does not vary depending on the medium in which a work is presented.
Third, we believe the court’s interpretation of fair use is irredeemably flawed. The fair use provision—Section 107 of the Copyright Act—requires that in deciding whether a given instance of copyright infringement can be excused as fair, four factors must be analyzed and their relative merits weighed: the purpose of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use on the potential market for or value of the copyrighted work.
This is not the place to reprise all our brief’s arguments about the errors of law in the court’s analysis of the four factors, but there are two that we think could have particularly significant, damaging, long-term consequences for scholarly communication. The first is the court’s blanket conclusion that because scholarly works are “informational” rather than “fictional,” the second factor in a fair use analysis—the nature of the work—should automatically favor those who want to make verbatim reproductions of them without paying permissions fees semester after semester. Essentially, this means that in the judge’s view the non-fiction works published by the members of AAUP—in a word, almost everything they publish—enjoy no more copyright protection than a directory. As the brief points out, the case law shows that this reductive categorization is simplistic and misleading. It is also, in our view, a remarkable devaluation of the creative energy and skilled judgment of scholarly authors, and of the value of the scholarship they labor to produce.
The second flaw worth noting for its potential long-term consequences is the court’s analysis of the fourth factor and its judgment that in all but a handful of instances the market harm caused by GSU’s failure to pay permissions was so negligible as to pose no threat to the publishers’ interests. Yet the fourth factor asks the court to consider harm to both existing and potential markets; in other words, to evaluate the harm if the contested practice were to become widespread. Even accepting the court’s niggling analysis of the market harm caused by GSU’s e-reserves practices, it’s obvious that widespread adoption of those practices by other universities would very substantially increase the harm.
The members of AAUP are all nonprofits. Reducing their revenue doesn’t diminish profits paid out to private shareholders, because there aren’t any. Instead it reduces publishing capacity, a reduction that falls heaviest on the high-quality, specialized works of scholarship selected for inclusion in e-reserves systems in the first place because of their high value in teaching and advancing knowledge.
AAUP members, both individually and as a community, have invested significantly in non-profit online aggregation services that will make tens of thousands of our books viewable and readable to researchers connected to university libraries all over the world. They have also labored, throughout their history, to keep prices low—for many scholarly books, even below cost-recovery rates.
The financial problems of university libraries are severe, but they haven’t been caused by the members of AAUP. Seeking to reduce even further a legitimate source of secondary revenue for university presses may appear to be good for libraries in the short term, but it denigrates the work of faculty scholars and penalizes university presses for doing what they do best: publishing the very work that is most valuable in teaching and research. The long-term consequences can’t be good for any of us: presses, scholars, authors, or libraries. Surely if we put our heads together we can do better than that.