On Friday, the U.S. Court of Appeals for the 11th Circuit handed down an important decision in Cambridge University Press et al. v. Carl V. Patton et al. concerning the permissible “fair use” of copyrighted works in electronic reserves for academic courses. Although publishers sought to bar the uncompensated excerpting of copyrighted material for “e-reserves,” the court rejected all such arguments and provided new guidance in the Eleventh Circuit for how “fair use” determinations by educators and librarians should best be made. Remanding to the lower court for further proceedings, the court ruled that fair use decisions should be based on a flexible, case-by-case analysis of the four factors of fair use rather than rigid “checklists” or “percentage-based” formulae.
Courtney Young, president of the American Library Association (ALA), responded to the ruling by issuing a statement.
The appellate court’s decision emphasizes what ALA, the Association of College & Research Libraries (ACRL) and other library associations have always supported–thoughtful analysis of fair use and a rejection of highly restrictive fair use guidelines promoted by many publishers. Critically, this decision confirms the importance of flexible limitations on publisher’s rights, such as fair use. Additionally, the appeals court’s decision offers important guidance for reevaluating the lower courts’ ruling. The court agreed that the non-profit educational nature of the e-reserves service is inherently fair, and that that teachers’ and students’ needs should be the real measure of any limits on fair use, not any rigid mathematical model. Importantly, the court also acknowledged that educators’ use of copyrighted material would be unlikely to harm publishers financially when schools aren’t offered the chance to license excerpts of copyrighted work.
Moving forward, educational institutions can continue to operate their e-reserve services because the appeals court rejected the publishers’ efforts to undermine those e-reserve services. Nonetheless, institutions inside and outside the appeals court’s jurisdiction–which includes Georgia, Florida and Alabama–may wish to evaluate and ultimately fine tune their services to align with the appeals court’s guidance. In addition, institutions that employ checklists should ensure that the checklists are not applied mechanically.
In 2008, publishers Cambridge, Oxford University Press, and SAGE Publishers sued Georgia State University for copyright infringement. The publishers argued that the university’s use of copyright-protected materials in course e-reserves without a license was a violation of the copyright law. Previously, in May 2012, Judge Orinda Evans of the U.S. District Court ruled in favor of the university in a lengthy 350-page decision that reviewed the 99 alleged infringements, finding all but five infringements to be fair uses.