Cambridge University Press has said it welcomes the latest ruling on fair use made in the long-running Georgia State University Lawsuit.
CUP, Oxford University Press and Sage are engaged in a copyright violation case brought against the university for alleged infringements in the unauthorised copying of copyright materials for course packs.
An earlier ruling in May 2012 by US district judge Orinda Evans had found in favour of the publishers over only five out of 99 alleged infringements, prompting CUP's corporate affairs director Peter Davison to say the publisher was "disappointed at the failure of the court in this case to recognise that GSU's conduct amounted to systematic and industrial-scale unauthorised reproduction of our authors' works."
However on Friday (20th October), the US Court of Appeals for the 11th circuit, which covers Georgia, rejected that ruling, stating that the District Court "erred in setting a 10%-or-one-chapter benchmark. The District Court should have performed this analysis on a work-by-work basis, taking into account whether the amount taken— qualitatively and quantitatively—was reasonable in light of the pedagogical purpose of the use and the threat of market substitution." It also stated that because the university's unpaid copying was "nontransformative" and the university used the publishers’ works for one of the purposes for which they are marketed, "the threat of market substitution is severe".
Inside Higher Ed reported Judge Gerald Bard Tjoflat as saying: “To further the purpose of copyright, we must provide for some fair use taking of copyrighted material. But if we set this transaction cost too high by allowing too much taking, we run the risk of eliminating the economic incentive for the creation of original works that is at the core of copyright and -- by driving creators out of the market -- killing the proverbial goose that laid the golden egg.”
However the court was also “persuaded” that the Copyright Act of 1976 contains protections for colleges and universities, saying that Congress had “devoted extensive effort to ensure that fair use would allow for educational copying under the proper circumstances.”
Inside Higher Ed termed the latest ruling "a partial win" for publishers, warning it had ensured "the case has a long and litigious road ahead of it by reversing the district court’s opinion and sending the case back for further deliberations."
CUP said in a statement to The Bookseller: "The three publishers involved reluctantly undertook this action to help clarify important questions of copyright in a digital world. We welcome Friday’s decision as it will help to protect the intellectual property rights of authors and publishers who produce high-quality educational materials on which colleges and universities depend. We have at no time sought damages or to extend copyright protections through this case, merely wanting to bring Georgia State’s practices in line with those at many other universities.
"We will continue to work with the scholarly community, including libraries, authors, editors and academic societies, to develop copyright policies and practices – together with industry bodies such as the Association of American Publishers, and with collective licensing bodies – that support both effective dissemination and sustainable production of scholarly knowledge. We now look forward to a revised ruling from the lower court that we hope will draw this litigation to a close."