A teacher would like to reprint a student workbook we can no longer find in print. We tried to get permission from the company that bought the publisher out, but they said they couldn’t help. At this point, can we prove that we have made a good faith effort to receive permission?
It is frustrating to know just the right resource for a class—and be unable to access enough classroom copies.
Just as vexing is going the extra mile to seek permission to make your own…only to be told that you’ve reached a dead end.
And yet, class must go on. We tried to ask…now can we just make those copies?
Unfortunately, a “good faith effort to receive permission” is not a defense from liability for copyright infringement. Further, introducing evidence of the “good faith effort” to doing things the right way might work against a defendant, since it might limit their ability to claim they are an “innocent infringer” (someone who has no basis to know they are infringing, or made a reasonable but erroneous assumption of fair use).
Of course, there are some exceptions to this rule. If the purpose of the copies is to enable commentary and criticism, excerpts sufficient to illustrate the instructor’s point (and no more) may be duplicated. And a library making an archival or preservation copy under §108 of the Copyright Act might duplicate the entire book (once, but not for classroom use). But copies for students, whether or not they are sold, do not fall into these categories.
The best solution in this situation may be to find a stalwart staff member who likes to play detective, who can hopefully track down the actual copyright owner. This can sometimes be determined on copyright.gov, can sometimes be determined from author’s websites, and can sometimes only be distilled by triangulating the information from about five different sources.
And sometimes, even after a herculean effort, the answer cannot be found. But no matter what, unauthorized duplication of copyright-protected work without permission can lead to liability and damages…and a defendant showing they tried to ask for permission before doing the copying might make things worse.
Can a faculty member, who no longer requires students to buy a textbook, duplicate and share (with the students) the supplemental instructional resources provided by the publisher? The resources can be both digital and hard copy.
Sometimes, an instructor will try and solve both these problems by removing the book from the syllabus, while keeping a few choice materials on hand from the instructor copy supplied by the publisher. This seems like a win-win: the students have one less book to buy, while the lecture notes, visual aids, and LMS can carry forward the valuable content retained by the instructor. But is this scenario allowed?
The answer lies in the specific product’s license. And while there are countless publishers with every permutation of license, that answer will probably be: NO.
How can this be? Isn’t it Fair Use? Didn’t the institution or instructor already buy the materials?
This is where things get interesting.
First: how can this be? It is a very deliberate tactic by the publisher. Responding to a market resisting expensive textbooks, academic publishers are always developing new ways to incentivize purchasing. One technique is selling student materials “coupled” to instructor-side materials via a license. The license conveys a copy, rights of duplication, and perhaps digital sharing for instructor-side materials, conditioned on a requirement that the textbook be “adopted” (officially required) in the course syllabus. The instructor, who is getting free materials, adds the book, and the contractual requirement is met (until it isn’t).
This approach is some pretty clever lawyering (and marketing), since it uses copyright, often some trademark, and a lot of contract law to give instructors more rights than they have under copyright law (to duplicate, upload, etc)…and then yanks those rights away, if the book is no longer required. The fact that these rights are financially under-written by students is one of the unsung tensions of higher ed.1
Second: Fair Use. There are many circumstances in which limited duplication of instructor-side materials could qualify as Fair Use (teaching a course critically analyzing instructor-side materials would be one of them). But simply continuing to use the rights from a license the purchaser has departed from (by no longer adopting the textbook into the syllabus) is not one a Fair Use…it’s just a violation of the contract, and potentially, of copyright. Both could bring penalties; one contractual, and one statutory.
Finally, “First Sale Doctrine”: Some rights to the instructor-side hard copy might be retained under the “First Sale Doctrine,” which allows purchasers to re-sell, read, and retain physical copies once they are in the market.2 But beware…the license could contain a contractual requirement to return the instructor-side materials when the license is no longer valid (this would be done through a rental or other restricted acquisition provision).
The answer to a question like this is almost always in the specific license from the publisher.3 Deviation from those terms, unless there is a very clear case of Fair Use, is not wise.
1 My tone is cynical, but on the flip side, this is how the authors and creators of instructional works get paid. We can discuss the equities of this system another day!
2 The First Sale Doctrine is taking a beating from the increasing reliance on digital copies. But that is yet another topic, for another day!
3 Something our member suggested, when posing the scenario. WNYLRC has savvy members.
Our question concerns the copying of college textbook chapters for students where the required textbook is either backordered by the bookstore day one of semester or where a late enrollees’ textbook is out of stock.
One current solution involves a limited checkout of a text for the first four weeks of a semester, and only for library use for reading or photocopying. We keep a printout of the standard Copyright notice on the copier to warn against excessive copying. After four weeks, students must have access to the book on their own and textbook copies remain solely as desk copies for faculty.
However, what is advised when multiple classes do not have textbooks in stock and late enrollees are more prevalent? What does copyright permit in terms of copying textbook chapters or providing e-links to textbook chapters on LMS (Blackboard, etc.) in such cases?
It’s 2017. Digital access to academic resources having been a factor in academic life for over 20 years, it would be reasonable to think I would have clear, well-established guidance to give you.
However, as of 2016, the United States was still struggling with Fair Use, and the law doesn’t give us the bright-line rules we are hoping for. Rather, particularly with regard to textbooks and digital access, recent case law has diminished them.
Very comparable to the circumstances you described is the case Cambridge University Press v. Mark P. Becker No. 1:08-cv-01425-ODE (N.D. Ga. Mar. 31, 2016). In Cambridge, a court in Georgia, after trying to use a simpler, equally weighted Fair Use analysis, and relying on the ill-fated “10% standard” of duplication, ruled that when creating digital copies/excerpts of textbooks:
(1) the first factor, purpose and character of the use, weighs in favor of fair use because [a university] is a nonprofit educational institution;
(2) the second factor, the nature of the work, is “of comparatively little weight…particularly because the works at issue are neither fictional nor unpublished;”
(3) the third factor, the amount of work used, must be viewed through the lens of “the impact of market substitution as recognized under factor four, in determining whether the quantity and substantiality . . .of [d]efendants’ unlicensed copying was excessive;” and
(4) the fourth factor, the effect of the use on the potential market for the work, “concern[ed] not the market for Plaintiffs’ original works . . . but rather a market for licenses.”
This case shows that a when it comes to textbooks, while courts will give strong deference to educational institutions, there is no “magic formula” (like 10% of the content) they will apply to ensure Fair Use. Rather, courts will apply a nuanced analysis that changes from work to work, and from use to use—making general guidance a challenge.
With all that in mind, my answer to the inquiry is:
First, the ability of the student/patron to physically access or check out the book is a great service by your library; with the required copyright notices posted, and no attempt by the library to collude with students in making prohibited copies, you are taking good advantage of section 108’s exemptions of libraries from liability for infringement. In addition, providing access to textbooks within the structure outlined above is a great incentive for students to visit the library.
Second, your actual question—can my library use digital access to help students who were late registrants or otherwise unable to secure a physical or full digital copy?—requires application of the Fair Use factors on a work-by-work basis, which as we can see, is an increasingly intricate and fact-specific exercise. You must apply the four factors not just on a work-by-work basis, but while considering the specific purpose of a particular use.
There are also some practical tips that can help you avoid being sued for infringement.
Tip #1: To answer questions like this, I always put myself in the shoes of the potential plaintiff.
· If I were the publisher, would I view the digitized access as cutting into my potential revenues?
· Is there an easily obtainable license for the excerpt, that the library is just choosing to ignore?
· Can I, as the publisher, easily put a price on the damages?
All these factors, if the answer is “yes,” can lead to the publisher instructing their lawyer to file suit.
However, even if all of these are true, I, the publisher, would also ask…did every person who accessed the digital copy already have a copy on back-order (and not return it)? If they bought my book, and were only using the digitization as a place-holder, I, the publisher, would tell my lawyer to look elsewhere for damages…especially since when I, the publisher lose, I am responsible for the legal fees of the other party (in the Cambridge case, the publisher was told to pay the fees of the university).
Tip #2: It is unfortunate that, like the courts, I can’t give a simple formula for Fair Use. However, one way you can sometimes get a bit of “free” advice on this is to consult with your institution’s insurance carrier. It is very likely your institution is insured for copyright infringement, and that they have a list of best practices they would like to ensure you, the insured, are following. As a professional within the library, it is good to also confirm that this coverage will cover not only the institution, but you as an employee. That can help you sleep at night.
Tip #3: And finally, if ever an entity notifies you that they are suing you for infringement, notify your insurance carrier right away. Often times, they can provide counsel, and help you reach a quick, low-stress resolution.