Georgia State Copyright Case Decided After Year of Deliberation

courthouseIn a May 30, 2011 Chronicle of Higher Education article,  “What’s at Stake in the Georgia State Copyright Case?”, set the stage for a potentially landmark copyright case that focused on fair use in the context of higher education’s user of e-reserves, and by association, course management systems. A clip from the above article best describes the core issues involved:

At issue before the court is the practice of putting class readings on electronic reserve (and, by extension, on faculty Web sites). Cambridge, Oxford University Press, and SAGE Publications, with support from the Association of American Publishers and the Copyright Clearance Center, are suing four administrators at Georgia State University.

The article mentioned that there would be a decision in several weeks but it extended into a year-long deliberation by the judge, Orinda Evans. Her final 350 page ruling (pdf) is posted courtesy of Nancy Sims‘ at the University of Minnesota if you want to read the full document. Jenny Howard followed up on the case in the Chronicle of Higher Ed Long Awaited Ruling on May 13, 2012. Up to this point, there was very little information about these specific kinds of uses online (e-reserves, course reserves) and now the community can interact with some of these points that were more ambiguous. The Association of Research Libraries put together an excellent issue brief of the Georgia State case (pdf) and a clear exposition of these points on May 15. For a good review of the background of this case, starting in 2008, see Hoffelder’s May 13 post.

James Grimmelman, a New York University Law Professor, summarized the implications this way on his blog, Laboratorium:

Thus, the operational bottom line for universities is that it’s likely to be fair use to assign less than 10% of a book, to assign larger portions of a book that is not available for digital licensing, or to assign larger portions of a book that is available for digital licensing but doesn’t make significant revenues through licensing

Kevin Smith in his Scholarly Communications @ Duke Blog has a helpful legal and educational analysis of the Judge’s decision and its implications for fair use. The findings (which are still subject to appeal and plaintiff creation of injunctions based on this ruling) include mostly encouraging and some frustrating news for libraries and higher education institutions. Here are some of Smith’s key points:

The Good

1. It is more likely that items can be used more than one semester if fair use applied in the first one.

Limiting the claim of fair use for an item for more than one semester or the “Subsequent Semester” rule is “an impractical, unnecessary limitation” (p. 71) according to Judge Evans.

2. Of the 99 claims made by the publishers, 95% were dismissed.

3. Revenue for permissions does not significantly impact the market value of the publishers content.

This is helpful for claims regarding the Fourth Fair Use Factor – Impact on market value.

The Bad

1. She chose 10% or one chapter as the allowable portion of a work to claim Fair Use.

This is much less flexible than the language of the original copyright law would allow.

2. it “heavily favors” the plaintiffs IF a license for the appropriate format is readily available at a reasonable price.



Online Education and the Cultural Shift in Higher Education

Who will fill these seats?

Anyone paying attention to the news or non-fiction section of booksellers will see that Higher Education is under increasing public scrutiny for its cost and its efficacy. Books like Academically Adrift hit the marketplace and stimulate discussion about what is being learned and at what cost to the student. Top institutions are now embracing the Web to reach new audiences by offering free classes through services like, Coursera, a partnership of Stanford, Michigan, Princeton, and Penn and EdX, a partnership of MIT and Harvard.

These efforts bring to the forefront another aspect of institutions of higher education; their heterogeneous cultures. Engaging the Six Cultures of the Academy by Bergquist and Pawlack discusses four core cultures and two emerging ones that are interrelated and support and challenge each other. The six cultures are the collegial, managerial, developmental, advocacy, tangible, and virtual.

These new models of free college courses illuminates the last two but first let’s define all six briefly:

Collegial: Describes the faculty of an institution who have deep knowledge of a field and deeply value the autonomous pursuit of it.

Managerial: Hierarchical system determined to produce results and influenced by Catholic or Community College structures as well as a strategy needed as institutions grow larger.

Developmental: Grew out of the need to help faculty members develop their teaching skills and collaborate with different disciplines.

Advocacy: Born out of the desire for equal treatment for all and in part as a reaction to efforts of the managerial culture to control the institution.

Virtual: Globally concerned and connected group enabled by technology to communicate and connect.

Tangible: Institution that values roots in history and tradition and a learning experience grounded in face-to-face contact.

The Virtual and Tangible cultures were already in tension with the maturing practice of online education and for-profit Universities. These free classes add an additional dimension to this balance because more people can access these educational resources and it brings the difference between the Tangible and Virtual into greater focus.

Take the Computer 101 course from Stanford as an example. The participants will be close to the same age between 18-22 in most cases and money will be a factor. A computer science course in a traditional, tangible liberal arts school will likely consist of students who either can afford the cost or have been supported to overcome the cost barrier. Because the school is limited in space in California in the United States students will predominantly be from the US with variety that a top-tier institution would normally include.  This free online course includes hundreds of people from all over the world and spanning the ages of 14 to 70s.  There are even parents who are taking the class with their teenage children. This is a feature of the Virtual culture that is both very exciting and very challenging.

Appreciating how all six cultures contribute to the academic setting is immensely more helpful than the tired polemics of how online education is either ruining or saving higher education.  Engaging these new models of delivery and placing them in context is one of my goals for taking this course and along with a better understanding of computer science, I hope to have a better understanding of how higher education is changing and productively and wisely adapt and move forward.

[Image from Fredjk – Stock.xchng]