While we are awaiting the results of the long-standing Google Books digitization copyright suit, there have been some important copyright battles libraries have won. The first was the Georgia State University digital reserves. The second is the recent decision regarding HathiTrust. I'll cover GSU in this post, and HathiTrust in a subsequent one, since my comments are long.
Earlier this year the case of publishers vs. Georgia State University regarding their e-reserves program resulted in a win for GSU as 69 out of 74 copyright infringement claims were denied by the judge. The case was about the provision of course readings in digital form. The suit was brought by three academic publishers (Oxford, Cambridge and Sage) but was bankrolled by the Association of American Publishers and the Copyright Clearance Center. Most readings were individual book chapters, and these were digitized by the library. Students in the class were able to access these through a password-protected site. The judge decided that for all but a few of the works the use was a fair use based on the nature of the use (educational) and the amount being used (one chapter). Unfortunately the judge also decided to enforce a "bright line" test of not more than 10% of the work (and the amount used of the works in question averaged 10.1%). As we know, bright lines are not in the spirit of fair use, yet the judge clearly needed some way to make her decisions.
One of the more striking things in the GSU case was that the publishers were unable to prove their ownership of the copyrights for over a third of the original items. They had published the books, but many of them were essentially anthologies and they could not find the appropriate paperwork for all of the individual pieces. This lack of proof in essence revealed these particular documents to be orphan works, even though the publisher of the book itself is known and some of the books may have been in print. I suspect that if you were to require actual proof of rights ownership for books or journal articles that the number of orphans would grow considerably. This would be especially true for articles, at least based on my experience: journal publishers are rather casual about getting signed agreements, and I have often modified agreements through strike-outs which were never contested.
This is just more evidence that our copyright system is a huge mess. Proving ownership requires expensive research (the copyright office charges $165 per hour) and often does not solidly determine who holds the rights at this moment in time. Most of our action around intellectual property rights is based on claims and suppositions, not facts, and we often act as if there were evidence of held rights even though we have no such proof. In contrast, the patent system is fully documented with descriptions and drawings and references to other patents, although by its own admission the patent office has about a 3-year backlog, and filing and researching patents is time-consuming and expensive.
Another interesting aspect of the GSU case is that some of the works being copied were not covered by any available licensing scheme. This is especially interesting since the publisher plaintiffs were backed by the Copyright Clearance Center, presumably the agency that one would turn to when desiring to license a work for use. Licensing is a relatively big business: CCC earns over $200 million per year. The publishers included in this case each earn something shy of $500K per year in fees from CCC licensing. Much of that, however, comes from the commercial printing of course packs, not from direct educational institution use. The judge determined that the percentage of publisher revenue from electronic course content would be .00046 (five one-hundredths of one percent) of the average net revenue for any one of the publishers.
Reading this it becomes rather obvious that the move from traditional course packs, which are produced by commercial copy shops, to digital course readings, which are produced by the library or the professor, would mean a loss of revenue for the academically-oriented publishers. Course packs got slammed by the copyright holders not because copies were being made but because copies were being sold and all profit was going to the copy shops, none to the rights holders. In fact, in this lawsuit there were files on reserve that were never downloaded by students in the class, and the judge removed these titles from the suit because they were not read. This is an interesting answer to the question: "What if you make a copy and no one sees it?" Another way of wording this is: "Is it a copy if it has only been viewed by a computer?" With course packs, every student purchases every item in the course pack and you have no idea if any of those are read. With digital copies, every download can be counted. Although a download does not guarantee that the item has been read by the downloadee, it is a quantifiable use in the same way that the number of course packs printed is quantifiable. A file online does not seem, in and of itself, to be the same as a physical copy. This could have implications for library digitization projects, and relates to the decision in the Authors Guild v. HathiTrust case.
There are some gotchas to the use of a copyright licensing agency because of the inherent nature of the US fair use law. When one approaches CCC to license a work there is no fair use determination that is made as part of that request. It is up to the requestor to decide whether a license is needed or not. There are annual licenses available for educational institutions that cover a set of materials. None of these licenses are needed if the use is a fair use, and for educational institutions many uses are indeed fair uses, in particular classroom use. Therefore the CCC annual educational license may be paying for uses that do not require payment under copyright law. In essence, the license may be seen as a kind of insurance policy against infringement claims, but it may not be money well-spent. As the judge in the GSU case states (p. 66) "In the absence of judicial precedent concerning the limits of fair use for nonprofit educational uses, colleges and universities have been guessing about the permissible extent of fair use."
The decision itself runs to 350 pages, much of which is taken up with the decisions about the 74 documents in question. The judge does a very nice job of defining the nature of a work, and why individual chapters are viable on their own as part of a course syllabus. The decision that 10% of a "work" is permissible makes me wonder, however, if publishers won't see the light and begin digital publishing of individual chapters rather than creating book-length anthologies.
More legal analysis is available on James Grimmelman's blog.