March 23, 2018

Why Are Some Publishers So Wrong About Fair Use? | Peer to Peer Review

We have seen several decisions in the past few months about fair use and libraries, and so far libraries are coming out ahead.

The Georgia State case offered a limited win for libraries, with a decision holding that most of the challenged excerpts provided digitally to students were fair use, but also rejecting the idea that that specific use of copyrighted works was transformative, and imposing an artificial and fairly rigid rule about the amount of a work that can be copied.

In the HathiTrust lawsuit, the District Court judge went much further in affirming fair use for libraries. He did rule that the scanning of copyrighted works for the purposes of providing a search function, for preservation, and for accessibility, at least for persons with print disabilities, was transformative fair use.  Judge Baer recognized what the GSU judge ignored, that a line of cases from several different Circuit Courts have held that a transformative fair use argument can be based on the purpose of the use; it need not always require actual alterations to the original work. Because he held that HathiTrust’s use of these scans was transformative, Judge Baer also ruled that the amount used was a less important matter, related not to an artificial standard but to what is appropriate for the transformative purpose (so, in the case of HathiTrust, using the entire work was appropriate). He also said that the existence of a licensing market, or a potential licensing market, is irrelevant when the challenged use is transformative because rights holders do not have a right to foreclose transformative uses, which a licensing scheme would allow.

I hope the lawyers for Georgia State are looking at this ruling as they prepare for an appeal in that case. Libraries, of course, did not initiate any of these lawsuits, nor did they decide to appeal the GSU decision. But appeals, like trials, can go in different directions. I hope GSU asks the appellate panel to reverse Judge Evans on the issue of transformativeness (especially since the 11th Circuit, where the appeal will be heard, helped create that analysis) and to hold that, since the provision of excerpts for supplemental course reading is a transformative purpose, the rigid percentage guidelines in Judge Evans’ definition of “decidedly small” are too restrictive. Libraries should be fighting for an “appropriateness” standard based on pedagogical need, similar to what we saw from Judge Baer.

All this is a hopeful sign, but it is worth asking where things went so wrong. Why are we in this situation in the first place, where academic publishers are suing libraries – their own customers – over using academic publications for teaching? One answer, cynical but probably partially correct, is that this is a business ploy, an especially aggressive market technique on behalf of rights holders and, especially, the Copyright Clearance Center, which is trying to drive business towards its blanket academic campus license. But I think there is another, more fundamental problem, one which lies behind both the GSU case and the Authors Guild suit against HathiTrust.

It is easy to say that the plaintiff publishers simply fail to understand the place of fair use in our copyright scheme. They obviously do. But I think that is a symptom of a deeper problem. The root issue is a failure to understand what copyright is for.

What has developed in the content industries is a sense that copyright exists to support their businesses, so any new way they find to extract a little extra money from the rights they hold should be endorsed and protected by the courts. If you start from that premise, it makes sense to sue libraries for providing digital copies to blind people and professors for giving students access to short excerpts from a scholarly book because you believe you are acting from within the core purpose of copyright. But the premise is wrong.

Copyright exists, as most librarians well know, to give incentives to creators in order to effectuate a public purpose – the progress of science and the useful arts. Creators (and the Authors Guild) need to understand that copyright is a creation of statutory law and not some natural right that is given from on high. Publishers need to understand that even though their business are built on the copyright monopoly, that monopoly is first, limited, and second, does not exist for their benefit. Neither the law nor the courts that interpret it have any obligation to protect the particular business of publishing except insofar as it promotes science and the useful arts.

Part of this misunderstanding stems from the fact that copyright developed at the same time as, in in reaction to, the new technology of printing. Because publishers are in the business of printing books (at least, many still seem to believe that that is their business), it is easy to conclude that copyright is a wholly-owned subsidiary of the printing business and can be used by publishers to fight off any threats to that particular business. But copyright law is intended, at least, to be technology-neutral. Its ostensible goal is to foster creativity and innovation across technologies, not, I repeat, to protect one business model for creative work over against any other. And, of course, if it becomes too tied to any particular technology, it fails in its Constitutional purpose and need thorough-going reform.

By the way, no less a figure than Judge Richard Posner has expressed his concern that our copyright law has lost sight of this purpose and become too expansive, in this blog post about the excessive scope of both patent and copyright law. His concern is that these laws have actually become obstacles to the creativity and competition they were supposed to foster.

Once we are clear about this purpose, fair use makes perfect sense. It is not an annoying exception that should be limited only to individual uses or to situations where there is “market failure.” Rather, it is an indispensable part of the scheme that has developed over hundreds of years to create and preserve the conditions where creativity and authorship can best thrive. As some of those conditions change (because, for instance, Al Gore has invented the Internet), fair use is even more important because it is the key to flexibility, the key to adjusting the scope of the copyright monopoly so that it continues to serve its public purpose. If some private business can no longer survive in the new environment, that is not the primary concern of the courts, and certainly no reason to reshape the law to protect them.

One of the great things about Judge Baer’s opinion in the HathiTrust case is that he clearly understood this situation. His ruling affirms the fundamental role of libraries in promoting the public good, and of copyright both in setting the boundaries and in defining the opportunities for that work. What we do in libraries is key to effectuating the purpose of copyright in the U.S., and fair use is there to help us provide a public service, the value of which has been recognized since the founding of our Republic.

Kevin L. Smith About Kevin L. Smith

As Duke University’s first Director of Scholarly Communications, Kevin Smith’s ( 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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  1. BEAUTIFULLY said, Kevin! A couple of thoughts, in order of appearance in your piece, not order of importance:

    1. You stated that most librarians well know the actual purpose of copyright law: to promote the creation of more works, to promote contributing to the body of works and human knowledge already out there. Based on my experience of giving copyright workshops (F2F and online) for almost 15 years, to librarians more than anyone else, most librarians do NOT know this. (Well, they do by the end of the workshop!) I ALWAYS begin by asking the participants, “What is the purpose of copyright?” Sometimes, someone will give the “correct” answer. But the vast majority answer with some variation of “to protect owners’ rights.” I blame/credit this in part to what is going on in this arena today — that is, the message they are getting from the huge push by the content industry to convince all of us, the general public included, that awarding owners is indeed the purpose of copyright.

    2. I want to flesh out what you said indirectly, that the biggest driver behind the current atmosphere of “grabbing” by the owner industry is FEAR. And we all know how difficult it is to think rationally when in a place of fear. I point this out because I think it is very very important for us to keep in mind as we work with publishers and other content owners to help them understand, among other things, the true purpose of copyright law and the imperative tool of fair use. We need to come at this not only from a position of educating and advocating, but also with the recognition and acknowledgement of where THEY are coming from. Their fears in reaction to perceived threats of new technology are totally legitimate, and I think we need to acknowledge that; we just have to work together to find productive, not reactive/defensive, ways to address those fears and move forward.

    3. I love your reference to the “flexibility” of fair use. I also emphasize this to my classes and clients and tell them that I realize we sometimes hate the lack of bright lines in fair use, because it can be so frustrating, but point out that this is also its beauty, what makes it such a powerful tool. “Embrace the flexibility!” I say!

    thank you, Kevin!

  2. From the above: Creators (and the Authors Guild) need to understand that copyright is a creation of statutory law and not some natural right that is given from on high.

    I guess further to this misunderstanding, the Authors Guild has said in its initial press release post- Judge HB’s ruling (12 OCT 2012)::

    “We disagree with nearly every aspect of the court’s ruling.” Stay tuned.

  3. The current Opinion and Order by Judge HB states on page 22:

    — The provision of equal access to copyrighted information for print-disabled individuals is
    mandated by the ADA and the Rehabilitation Act of 1976.”

    The website of The Sheridan Libraries of Johns Hopkins University currently states:

    — The Eisenhower Library is the university’s principal research library and the largest in the Hopkins library network, which includes specialized facilities and collections in medicine, public health, music, international affairs, and earth and space science. In addition to more than 3.7 million books, the libraries provide 24/7 access to a rich collection of electronic resources, including over 171,000 print and e-journals, and more than 900,000 e-books.

    — The library also offers an extensive array of electronic resources, including full-text books and journals, specialized databases, and statistical and cartographic data.

    The website also states under “Services for Persons with Disabilities”:

    — The Eisenhower Library provides a variety of services for patrons with disabilities.

    — Two scanners for converting a written document into an electronic file are available in Government Publications/Maps/Law Library, A-level.

    .. However, none of the listed services for Persons with Disabilities extend to the making of accessible copies of copyrighted materials for persons with a print disability as Judge HB has now mandated under the ADA… most listed services deal with access to the library for persons utilizing wheelchairs.

    So, by the Judges Order as it currently stands, The Sheridan Libraries of The Johns Hopkins Libraries and the Sheridan Dean of Libraries Mr. Winston Tabb — current President of The Association of Research Libraries (ARL) — may be in violation of the Americans with Disabilities Act.

    — et tu Duke?

    Note: Of all the Defendants — including The Universities of Michigan, Indiana, Wisconsin, & California; Cornell University and The HathiTrust itself — The Opinion & Order states p23 : “So far, only UM has made its works available to print-disabled individuals …”

  4. BTW why Johns Hopkins University in the above? Because it is located in Baltimore, MD, as is the HQ of the Authors Guild v. HathiTrust Intervenor Defendant The National Federation of The Blind (NFB) who has never challenged JHU as to their non-compliance with the 1990 ADA or the 1976 Rehabilitation Act.

  5. Also worth noting: Copyright is embodied in more than statutory law. U.S. Constitution Article I, Section 8

    • “Congress may promote the progress of science and useful arts by granting copyrights and patents of limited duration.”

      “Limited duration,” I like it! So, in other words, copyright cannot keep extending forever to protect Micky Mouse, or any other money making work.

    • Sorry, quoted the wrong bit: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

      But again, “For limited times”. Means the same thing, there is a limit to the time the copyright shall be enforced.

  6. I think it’s important to understand that there may be a difference between what a law is meant to do and the means by which it does that. For copyright, granting the monopoly is the means, not the end. The end is the freer flow of ideas. If the means are not working well to achieve the end, they should be adjusted.