Copyright, Fair Use, and Academic Institutions

A district court in Georgia recently issued an opinion that, if upheld, may allow academic institutions and others to share portions of digital documents online and avoid liability under U.S. copyright law.

In Cambridge University Press v. Becker, the U.S. District Court for the District of Georgia considered a case where Georgia State University (GSU) allowed its faculty to post excerpts from copyrighted books online so long as the faculty members filled out a “fair use checklist” to determine whether the posting qualified as fair use.  The plaintiffs alleged that GSU’s postings infringed plaintiffs’ copyright in 74 documents.

In its 350-page opinion,  the court sided with GSU with respect to all but five of the 74 documents.  In the decisions favoring GSU, the court generally found that the university published only small excerpts online with no intent to profit from the posting.

What amount is “small enough” to qualify as fair use?  The court acknowledged that “colleges and universities have been guessing about the permissible extent of fair use.”  Although most of the publications at issue involved no more than one chapter of a book (or less), the court said that the “amount  allowed to be excerpted will be determined in the overall fair use assessment.”  In other words, the court’s decision established no bright line test.

The court also found relevant the fact that GSU established a fair use policy.  However, the court found the policy to be deficient in that the policy did not limit copying to small amounts consisting of no more than a single chapter.  The court also criticized the GSU policy for not requiring  faculty members to consider a posting’s potential effect on the market for the copyrighted work.

If upheld, the decision suggests that academic institutions may be permitted to post excerpts of copyrighted works so long as the publication is in compliance with written policies that: (i) prohibit publication of more than a chapter (or other relevant section identifier); and (ii) consider the publication’s effect on the market for the original work.  However, as the case may be appealed, institutions should tread cautiously until other courts issue additional guidance in future decisions.

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