November 22, 2017

Copyright Incentives in the GSU Appeals Court Ruling | Peer to Peer Review

Kevin L. SmithThe word incentive appears ten times in the ruling issued last month by the Eleventh Circuit Court of Appeals in the Georgia State University (GSU) copyright infringement case, but it is slightly unclear in this rather odd opinion just who is the object of the incentive created by copyright. In seven of those ten instances, the incentive is clearly intended to benefit the author. But there are three sentences at the very end of the majority opinion (the other three uses of the word) where the court seems to interrupt its analysis to state that the incentive belongs to publishers, not authors. It is, I think, worth parsing this apparent contradiction in order to guess at how the trial court might think about incentives on remand.

First, the appearance of the idea of incentives to publishers is quite strange—it is confined to a single page in the ruling, page 108. The court has just said that asking, as part of the first fair use factor, “whether the limited unpaid copying of excerpts will deter academic authors from creating” (emphasis in the original) is a relevant part of the inquiry. Yet, immediately after stressing the importance of the creator, the majority writes three sentences, introduced with “Nevertheless,” about how the important incentive is for publishers, not academic authors.

If this were legislation, we could easily identify the hand of a lobbyist in this sort of turnabout. In a court opinion it is usually the result of compromise with a potential dissenter. Judge Roger Vinson’s “special concurrence” reads very much like a dissent, and I wonder if this contradictory bit of dicta about publisher incentives was added as part of a compromise to preserve a unanimous opinion.

I say contradictory because throughout the rest of the opinion, the Court of Appeals panel talks a lot about the incentive copyright is intended to create for authors. On pages 46 through 54 (section IIIB of the opinion) there is a very nice, well-crafted explanation of the purpose of copyright and the place that fair use occupies in the overall copyright bargain. That section is full of the language of authorial incentives; it begins by quoting the Supreme Court about how copyright is granted for the “encouragement of individual effort” in order to “advance public welfare…through the talents of authors.” The following seven pages, where most of those uses of “incentive” occur, are all about authors, the individuals who create the products of culture that copyright is meant to encourage.

This is all very standard stuff in discussions of copyright. In fact, one way to contextualize the sudden divergence in the opinion to a brief reference to incentives for publishers is to realize that this tension goes back at least to the 1703 Statute of Anne, where publishers made a strategic decision to shift the debate about continuing the licenses to publish that supported their monopoly by evoking the sympathetic figure of the author in order to get legislation passed. For whatever reason, that strategic shift intrudes onto a single page of the Eleventh Circuit ruling, while the rest of the discussion focuses the idea of incentives quite clearly on authors.

All this will create a bit of a dilemma for Judge Orinda Evans of the District Court when she reconsiders the fair use analysis on remand. Although I had originally thought that a settlement was now likely, so that further District Court proceedings would not actually take place, I was interested to read a comment by a GSU spokesman in an article written for a lawyer’s newspaper in Atlanta (requires registration) that the university did not intend to settle. It appears that they think that Judge Evans might still rule largely in their favor if she redoes her fair use analysis consistently with the Eleventh Circuit’s instructions. Perhaps this persistent discussion of incentives might be one reason why.

There are at least three ways Judge Evans might consider the role of incentives in the fair use analysis, depending on how she understands the inconsistent instructions on that topic she has received. Let’s look at each in turn, recognizing that they are not mutually exclusive:

First, she can look at the simple issue of how important the income from licensing is to the three plaintiff publishers. This approach would give weight to that three-sentence interlude on publisher incentives and, in fact, Judge Evans has already employed it in analyzing a few of the excerpts in her original opinion. In a few cases she looked at the profit figures for specific titles to see how much publishers really needed that extra money; in most cases she found that it was trivial. Now she has been told to make that inquiry a more significant part of her analysis, which means that publishers will need to open their books a little wider so that Judge Evans can consider in each case whether the income from licensing matters in the overall decision to publish or not. I am not sure that is actually a question the plaintiffs want explored.

Another approach the judge could take would be to try to unite the two concerns about incentives expressed by the Eleventh Circuit. She could look at the incentive for publishers as a concern about the options and opportunities available to academic authors. In other words, what role do licensing fees have in ensuring that there are outlets available to publish academic work? This too is a risky discussion for the publisher plaintiffs. First, it is not clear that the situation for traditionally published monographs such as those at issue in the GSU case is as dire as some rhetoric around the lawsuit has suggested. Even without the extra revenue that publishers have told the courts they need, it seems, as illustrated by this article from the American Historical Association, that academic monograph publishing is stable or increasing slightly in spite of the “threat” of fair use. And, second, if we open this discussion about publishing outlets, it must surely include the realization that there are new publishing opportunities available to authors that are unrelated to traditional publishers like plaintiffs Cambridge, Oxford, and SAGE. In short, if Judge Evans tries to reconcile the strong concern expressed in the panel’s ruling for author incentives with its last-minute reference to publisher incentives, she may be forced by developments in the digital age to separate those two kinds of incentives again, realizing that academic authors’ creation is no longer as unbreakably bound to traditional publishing as it once was.

Which brings us to the final, more obvious and traditional approach to incentives in copyright and the one that the panel is most eloquent about. How does copyright directly incentivize the creation of academic work (as it clearly incentivizes the creation of other types of cultural products like novels and films)? The answer, of course, is that it doesn’t, at least not in the large majority of instances. The economic rewards that academic authors get for publishing, related to hiring, promotion, and tenure, come from universities and are only indirectly related to publishing. It seems pretty clear that the extra income from licensing fees that is being sought in this case would make little or no difference in incentivizing scholarly authors to write a monograph. They might want to publish with Oxford University Press (OUP), of course, because of OUP’s reputation. But not because they might make a few dollars more when OUP collects additional licensing fees for what are now considered fair uses.

This approach to incentives, which is by far the most natural one to take, could be really bad news for publishers. If Judge Evans takes her instructions from the Eleventh Circuit seriously, she needs to require the publishers to submit data about how much of the money collected as licensing fees actually goes to authors. The plaintiffs, and the Copyright Clearance Center (CCC), which is supporting their lawsuit, should show the court what a difference this extra income will make to authors. What percentage do they receive of the fees that are paid now for permission, after that money has passed through the hands first of the CCC and then the publisher? Will that amount increase significantly if the role of fair use is restricted? And she may need to hear from academic authors about the importance they attach to payments from publishers and especially the added incentive, if any, that those extra dollars from increased licensing would have for them.

The question of copyright’s incentive purpose is fraught with complication in the area of academic writing. If Judge Evans does as she has been told, she will need extensive financial information from the publishers and the CCC. Even more important to her reanalysis, however, will be a fact that she has already noted in her original opinion: the monetary reward that scholars gain from academic publishing is almost always negligible. On that simple fact rests the best reason why Judge Evans could, on remand, actually find more room for fair use rather than less.

Kevin L. Smith About Kevin L. Smith

As Duke University’s first Director of Scholarly Communications, Kevin Smith’s (kevin.l.smith@duke.edu) principal role is to teach and advise faculty, administrators and students about copyright,intellectual property licensing and scholarly publishing. He is a librarian and an attorney (admitted to the bar in Ohio and North Carolina) and also holds a graduate degree in religion from Yale University. Smith serves on Duke’s Intellectual Property Board, Digital Futures Task Force and Open Access Advisory Panel. He is also currently the vice chair of the ACRL’s Scholarly Communications Committee. His highly-regarded blog on scholarly communications discusses copyright and publication in academia, and he is a frequent speaker on those topics.

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Comments

  1. The Supreme Court in Golan v. Holder emphasized that the purpose of copyright is to incentivize both creation and dissemination. The Appeals Court alluded to that on pp.46-47. So I think the later uses you found are a nod to the earlier emphasis.