Copyright time-travel is a bad idea

©Libn, circa 1976

The lawsuit against Georgia State University brought by a number of academic publishers (including Cambridge, Oxford, and Sage) and funded by the ostensibly non-profit Copyright Clearance Center proceeds to trial on Monday morning. At issue is the widespread re-use and sharing of academic content among faculty, staff, and students at a large university – sharing and re-use that is essential to the academic endeavor. It is quite devoutly to be hoped that Georgia State will win at trial, and that we will get a court opinion holding that many currently common practices of sharing and re-use in education are permitted as fair use.

However, it’s possible that Georgia State will not win, and recent documents filed by the publisher plaintiffs highlight just how bad the outcome could be in that event. The document in question is the publisher plaintiffs’ proposed injunction – the remedy they are asking the court to apply if they win. Among other restrictions on re-use and sharing, the publishers are asking the court to impose the 1976 Guidelines for Classroom Copying as the maximum standard for fair use on the Georgia State campus.

That the publishers would ask for this as a proposed injunction is surprising and disturbing. For a number of reasons applying the 1976 guidelines to educational use in 2011 is absolutely ridiculous!

1. The Guidelines were formulated in 1976. As an absolute passage of time, thirty-five years is not that long, but in terms of how content is created, shared, and distributed, that’s EONS ago.
   At the time these guidelines were formulated…
   • …most people created their academic works on typewriters, and some still copied them by mimeograph. Word-processors were new and flashy pieces of equipment (and no, I don’t mean word-processing software, I mean dedicated word-processing machinery.)
   
   image CC BY Marcin Wichary
   • …most people read academic literature in physical editions of journals or hard-copy books. Library catalogs were stored on paper. Database searching existed, but it often still involved paper punch cards.
   • …the average price of a library subscription to a chemistry journal was around $200. The average price of a library subscription to a chemistry journal in 2010 was around $3400. (Note that inflation between 1976 and 2010 would take that $200 only to $766.45.)
     (Philosophy journals only cost around $460 in 2010, but in 1976 they were about $30. Inflation, again, would account for an increase to about $115.)
     (2010 price data from Seeking the New Normal: Periodicals Price Survey 2010, K.S. Henderson & S. Bosch, Library Journal, 04/15/2010. 1976 price data from “Periodical Prices: 1976-1978 Update”, F.F. Clasquin, Library Journal, 10/01/1978.)

   It was much more difficult to make and share copies with colleagues and students in 1976 – but few people ever thought that copyright was an issue when doing so.

2. For a copyright to exist at all in 1976, the creator or copyright holder had to register with the Copyright Office. If the work was published without correct use of the copyright symbol, date of publication, and other formalities, all copyright in the work was lost, and it became part of the public domain.
   In 1976, you had to make some effort to own a copyright. By contrast, since 1978, everything anyone creates is automatically protected by copyright, whether the creator wants to exercise those rights, or not. This sea-change in the formation of copyrights has been a contributing factor to the current tendency to act as though all uses of any copyrightable works should be paid for, unless one wants to risk a lawsuit. It didn’t used to be that way.
3. The Guidelines were intended as a minimum standard of fair use. As the Guidelines’ own preface states: “There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.” Even assuming the Guidelines represented a reasonable minimum in 1976, there is simply no plausible argument that they can therefore be a reasonable maximum bound on fair use in 2011.
4. The Guidelines were not then, and never have been actual law, nor a binding interpretation thereof. They were an ad hoc agreement between a number of parties, including publishers and academics, around the times that the copyright laws were undergoing major changes with the passage of the 1976 Copyright Act.
5. The negotiations that established the Classroom Use Guidelines in the first place only ever included academic publishers. Many individuals seeking certainty about fair use ask me* whether they couldn’t just make everything easy on themselves by complying with the Classroom Use Guidelines. I usually respond that the Guidelines present a severely limited perspective on fair use, and point out that anyone other than an academic publisher would have no acquaintance with the Guidelines as relevant to a fair use determination.
   If an absolute limit on academic fair use is going to be established, shouldn’t other content owners get to chime in? While I’m not terribly worried about most industrial content owners getting their voices heard on copyright issues, content production is increasingly democratized and diversified, and those alternative voices are often not well-heard. There are many, many content creators and providers out there (academic and other) who want people to use and share their works.
6. The Guidelines make no sense when applied to materials that are not print-based. Increasingly, I hear people asking if they can show a YouTube video to their class, because it would just be a one-time use. (The idea that permission has (corrected 5/16/11) does not have to be sought the first time something is used in a class comes from the Classroom Use Guidelines.)
   How on earth would one apply the Classroom Use Guidelines to such a situation? To the computer scientists teaching an AI to understand speech by letting it listen to recorded radio? To a neuroscience researcher reproducing news articles for test-subjects to read in an fMRI? To all the millions of other uses on our campuses that do not involve print objects produced by academic publishers?
7. Even if the plaintiffs do not intend to impose the limits of the Classroom Use Guidelines to content they don’t own, there is no way to prevent it. For most non-lawyers (and even many non-copyright-specializing lawyers) whatever they know or hear about copyright in one area, they generalize. This is a pretty sensible approach for the non-specialist. Even specialists usually can’t wrap their heads around all of the complexities of copyright law – not to mention the ways that content licensing provisions warp things still further!
   It is extremely difficult to explain even to highly educated and erudite audiences why showing the entirety of a film in a classroom may be fine, but at a conference you may want to stick to using a short clip. Add in the complication that if the film was purchased under a licensing agreement that restricts either §110(1) or §107, you may be able to do neither, and most folks give up in disgust!

Why should you care if you are not at Georgia State University?

Well, if the court were to impose this injunction on Georgia State, you can bet that publishers would bring lawsuits against other universities, colleges, and educational institutions pointing to the Georgia State decision as precedent.

But even if the publishers don’t win in the Georgia State case (and goodness knows I hope they don’t) and this injunction is never granted, the simple fact that it was requested, by academic publishers, is a graphic indication that these particular publishers and the Copyright Clearance Center are in no way interested in fostering research, teaching, and scholarship. They’re interested in exercising maximal control over every bit of content they own, and squeezing money out of schools and users every single time we use, or share that content.

Most of the content published by academic publishers is produced by our own faculty and students – it is past time to commit to new models for distributing this content that don’t leave it in the hands of rent-seeking, for-profit businesses with no respect for academic values.

More Information

For a detailed analysis of the full request from the publishers, check out Duke’s Kevin Smith outlining “A Nightmare Scenario for Higher Education”. And Brandon Butler from the Association of Research Libraries has provided an insightful highlighting of what the publishers left out of the copy of the Guidelines that they submitted to the court.

*Because I am an attorney and bound by legal professional ethics requirements, I do not provide legal advice to people who are not my clients. I do often share information about how the law works, such as explaining the elements of a fair use analysis, without providing legal answers, such as whether a particular use is fair.