Current Issues in Higher Ed Copyright

Not the post I promised, but this week has been a little… weird. Mostly for good reasons.

One of the good things this week was that I met with the University Senate Library Committee to touch base on copyright issues. I was asked to provide a summary of some current hot copyright issues in higher education – so here’s that summary (with bonus links to more info!)

Georgia State Case (aka
Cambridge University Press et al v. Patton et al)

Individuals at Georgia State University were sued over the use of journal articles in
password-protected electronic reserves and course websites. The parties
bringing suit include Sage
Publications, Oxford University
Press, and Cambridge University
Press. Legal expenses of the publisher-plaintiffs are being subsidized about 50% by the non-profit
and ostensibly neutral Copyright
Clearance Center.

Oral arguments were heard in June, and an opinion is expected at any time. Because the case is currently
in District Court (Northern District of Georgia), itis likely any opinion will be appealed. Final
rulings are likely many years away. However, it is worth noting that the publisher-plaintiffs have asked the court
to find that the 1976 “Classroom Copying Guidelines” (which were intended
to outline some minimum standards for fair use) are an appropriate maximum
measure of fair use today. They have also asked that the court hold that no more than 10% of any course-based
uses should be allowed to proceed without payment, regardless of compliance
with the Classroom Copying Guidelines, or use of paid subscription materials or
non-copyright-protected materials.

More information:
My own prior posts on this case.
Kevin Smith’s “A Nightmare Scenario for Higher Education

UCLA Case (aka AIME et al.
v. Regents of UCLA et al.)

The Regents of UCLA, as well as some individuals, were sued
over the conversion of video content
owned by the University to online streaming formats. The case was dismissed last week, for a number of
reasons. In addition to technical issues such as sovereign immunity and lack of
standing, the court ruled that the
licenses the University had already purchased for “public performance” covered
the online streaming when restricted to UCLA users. They also ruled that incidental copies made in
pursuit of the legitimate licensed rights were fair use.

More information:
Christine Ross – “V is for (small) Victory (and for Video)
Peggy Hoon – “Copyright, Contract, or Complicated? AIME vs. UCLA Dismissed: Implications for Licensing

Golan v. Holder

A music professor (and professional conductor) is the named
plaintiff in this case, which challenges
legislation that removed many older foreign works from the public domain
(in compliance with some of our treaty obligations.) Oral arguments were heard before
the Supreme Court last week. 

More Information:
The Chronicle of Higher Education – “Supreme Court Takes Up Scholar’s Rights” by Marc Parry
New York Times editorial in support of the professor-plaintiff – “The Public Domain

Campus licenses (CCC; CPC;

In recent years, the Copyright Clearance Center (CCC) has
been selling “blanket” licenses in which a single payment satisfies copyright
permissions issues across all campus uses. A number of U.S. institutions have
signed on to this sort of license, but it is not a complete solution: the CCC does not have the power to authorize
the use of some of the materials used on campuses. Although their blanket
license has been suggested as a solution to the issues presented in the Georgia
State case, they do not clear rights for
works owned by Cambridge University Press, one of the plaintiffs!

More Information (on licensing in general):
ARL Policy blog/Brandon Butler – “How Many Times Must Libraries Pay for the Same Coffee, er, Content?
Paul Courant – “Georgia State in Publishers Weekly: Tom Allen of the AAP vs. Moi

Canadian institutions are currently grappling with the
opposite side of blanket licensing; for
many years, academic use in Canada has been (largely) covered by a nationalized
blanket license to an organization called Access Copyright. Access Copyright recently raised the rates
by a large amount, and a number of universities have balked at the
cost. Recently, at least one judicial proceeding has determined that Access Copyright can legally refuse to sell
universities licenses on a case-by-case basis
– a big setback for the
Universities. Some of them are working
with the CCC on case-by-case or blanket licensing. Others are committing to the use of nothing but public domain and
open-licensed materials on their campuses.

More Information:
Howard Knopf – “Copyright Board Refuses to Require Transactional Licenses from Access Copyright or its Rights Holders
Michael Geist – “An Unofficial FAQ on Canadian Universities Opting-Out of Access Copyright” and heck, ALL of his posts about this issue.

Google Books settlement

Parties related to the Google book scanning project have
been negotiating about terms of a settlement for several years. The presiding
judge has denied proposed settlement terms for a number of different reasons,
and it is looking increasingly unlikely
that a large-scale solution will be found via this process. Google is
proceeding with the project, but seems to be pursuing a variety of paths to
resolve outstanding legal issues.

Hathi Trust Orphans suit (aka
Authors Guild, Inc. et al. v. HathiTrust et al.)

Hathi Trust is a partnership of major research institutions
and libraries that hosts a large online library of digitized works, mostly
public domain. Recently Hathi announced plans to identify “orphan” works in their collection – currently
in-copyright works for which no rightsholder is identifiable or contactable – and make them viewable by individuals on
partner campuses. Although discussions had been proceeding between the
Authors Guild and Hathi on this issue, the Authors
Guild unexpectedly filed suit on September 12.  The suit attacks
library digitization very broadly – despite the fact that, as yet, Hathi
Trust still only provides full-text access to public domain works. A number of
international authors’ groups have just announced they are joining the suit. It
is very unclear exactly how the case will proceed.

Due to concerns about the procedures for reviewing orphan
status, the Orphan Works Project has been put on hold at present. However, it
is not being shut down; Hathi Trust has
expressed a commitment to their plans, and a firm belief in the fair use legal
justification for the project. 

More Information:
Kenny Crews – “HathiTrust and the Litigation Path
James Grimmelmann – “The Procedural Swamp
University of Michigan FAQ on the University’s Digitization Efforts

There are, of course, lots of OTHER issues in higher ed copyright right now, but those are the ones I had time to write about for yesterday’s meeting, and update today!

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