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of the work, is “of comparatively little weight…particularly because the works at issue are neither fictional nor unpublished;”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.