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Copyright law, as it applies to and impacts higher education, currently faces increased scrutiny and challenges from multiple directions. As many campuses quieted for the summer months, copyright discussions heated up, fueled by a lawsuit filed by video producers against UCLA, the 2nd Circuit Court of Appeal’s discouraging verdict on the first sale doctrine, which might prohibit library lending, and, most recently, debate over copyright permissions and the role of a clearinghouse affecting institutions in Canada. The most intense speculation, though, surrounds a case tried in late spring and now awaiting a verdict: the Georgia State University copyright case.
In 2008, three academic publishers filed a lawsuit against four named individuals at Georgia State University, alleging massive copyright infringement in the use of copyrighted materials made available via electronic course reserves and in the online course management system. The plaintiffs alleged that GSU used copyrighted materials in excess of fair use and without permission or payment. Although some of the initial charges were dismissed before trial, the case went to court in May with the plaintiffs having filed an injunction placing extremely strict and rigid limitations on GSU in placing copyrighted materials on electronic reserve or in course management systems. The primary concern shared by many in academe is that, should the judge find in favor of the plaintiffs, and the injunction be enforced, fair use exceptions, including classroom exemptions, would be severely curtailed at all universities and colleges, since the injunction, in essence, asks the Court to define fair use.
Most institutions have fair-use policies in place, with well-defined practices, including determining if faculty may place materials on electronic reserve under fair use, or if permission for use must be secured and a permission fee paid. At Wake Forest, the library budget includes money to pay for copyright clearance for electronic reserves materials. Prior to the lawsuit, GSU had lenient fair-use practices, finding all uses of materials requested for e-reserves to be fair use, and had not paid for any permission clearance. While this might suggest willful negligence, it more likely points to the problems in determining what fair use truly is. Furthermore, after the lawsuit was filed, GSU showed good faith by adopting a more stringent fair-use policy similar to policies in place at other institutions.
A decision in this case is expected this fall. Meanwhile, the Wake Forest community must bear in mind that all materials, published or not, are protected by copyright automatically, without the necessity of filing registration. As such, the use of any materials in electronic reserves, within Sakai, on a website or in the classroom is subject to copyright law and its exemptions for use, namely the classroom exemption and fair use. Copyright is confusing, and many faculty know less than they should. If you ever have questions about your ability to use materials in support of teaching or scholarship, contact Molly Keener, Scholarly Communication Librarian, at x5829 or Ellen Makaravage, who handles copyright clearance for electronic reserves, at x4947.
Additional reading about the Georgia State case: