On Friday US District Court judge Orinda Evans ruled against publishers seeking an injunction that would have imposed restrictions on faculty wanting to use copyrighted material in courses. She also required the publishers to pay Georgia State’s attorney fees. In a story from Inside Higher Ed Steve Kolowich reports “In the course of explaining her decision to make the publishers foot the bill for the university’s legal defense, the judge declared what observers have been opining for months: “On balance,” she wrote, “the court finds that the defendants are the prevailing party in this case.” For the opinion itself see http://chronicle.com/items/biz/pdf/pdflawsuit.pdf
In a long piece online at its web site, Simon Owens of US News and World Report offers an overview of academic (chiefly scientific) journal publishing and the rise of open access. See “Is the Academic Publishing Industry on the Verge of Disruption?” Starting with the recent Harvard letter on journal prices (see Transitions for April 23, 2012), the article reports on moves toward open access publishing, and resistance from commercial “closed access” publishers.
Pamela Samulelson writes about Google books, orphan works, the Digital Public Library of America (DPLA) and the possibility of reforming copyright law in the Chronicle of Higher Education.
“ Copyright should be shorter in duration, more balanced, more comprehensible, and normatively closer to what members of the public think that it means or should mean.
Although we are not likely to get comprehensive reform anytime soon, perhaps we can persuade Congress to make some more modest reforms.
We know it is now possible for the cultural and scientific heritage of humankind to be made available through a universal digital library such as the DPLA. It would be a grievous mistake not to bring that future into being when it is so clearly within our grasp.”
Inside Higher Ed reports that the drama over a copyright lawsuit filed by the Association of American Publishers against Georgia State University continues.
Following a ruling largely negative to the AAP, the plaintiffs have proposed an injunction which “…would prohibit Georgia State professors from making unauthorized copies that are not “narrowly tailored to accomplish the instructor’s educational objectives” and do not “constitute the ‘heart of the work’ ” from which they are excerpted, among other criteria.”
Read the fully story by Steve Kolowich at http://www.insidehighered.com/news/2012/06/04/publishers-seek-injunction-e-reserve-case
The Chronicle of Higher Education reports that “Judge Denny Chin on Thursday denied the company’s requests to dismiss professional associations as plaintiffs, and granted a motion to accord members of the Authors Guild status as a class in the lawsuit brought by three of its members.”
The University of California, San Francisco (UCSF), faculty senate voted unanimously for an open access policy that requires articles published by its researchers in scholarly journals to be made publicly available in electronic form. UCSF thus joins Harvard, Duke, Kansas and a number of other institutions in mandating such access. See the article by Michael Kelley in Library Journal and the May 23rd statement from UCSF.
As reported in the UCSF statement: “Our primary motivation is to make our research available to anyone who is interested in it, whether they are members of the general public or scientists without costly subscriptions to journals,” said Richard A. Schneider, PhD, chair of the UCSF Academic Senate Committee on Library and Scholarly Communication, who spearheaded the initiative at UCSF. “The decision is a huge step forward in eliminating barriers to scientific research,” he said. “By opening the currently closed system, this policy will fuel innovation and discovery, and give the taxpaying public free access to oversee their investments in research.”
The Association of American University Presses has issued a statement critical of the ruling in the Georgia State case and some of its interpretations, especially by librarians.
“We believe it is premature and unwise for anyone to declare victory or defeat. The ruling is 347 pages long and not easy to understand, its interpretation of the law is controversial and unprecedented in several important respects, and it appears to make a number of assertions of fact that are not supported by the trial record.”
Brandon Butler, Director of Public Policy Initiatives at the Association of Research Libraries has written an eight page Issue Brief discussing the recent ruling in the Georgia State case in some detail. The Executive Summary appears below:
The case concerns the use at Georgia State University (GSU) of electronic course reserves and electronic course sites to make excerpts from academic books available online to students enrolled in particular courses. The named plaintiffs in the case are three academic publishers (Oxford University Press, Cambridge University Press, and Sage), but an early filing in the case confirmed that the lawsuit was in fact being funded 50% by the Copyright Clearance Center (CCC) and 50% by the Association of American Publishers (AAP). The plaintiffs argued that the unlicensed posting of digital excerpts for student access almost always exceeded fair use and should require a license.
Although the decision is certainly not perfect (the use of bright line rules for appropriate amount under factor 3 is particularly troubling), Judge Evans has written a thorough and thoughtful analysis of the issues, and her opinion represents an overwhelming victory for Georgia State individually, a major defeat for the plaintiff publishers and for the AAP and CCC, and overall a positive development for libraries generally. The substance of the opinion is not ideal, but it is far more generous than the publishers have sought, it establishes a very comfortable safe harbor for fair use of books on e-reserve, and libraries remain free to take more progressive steps.
The long-awaited ruling in the suit against Georgia State brought by the academic publishers came down Friday and seems to largely favor the University. Jennifer Howard writes in the Chronicle of Higher Education :
A federal judge in Atlanta has handed down a long-awaited ruling in a lawsuit brought by three scholarly publishers against Georgia State University over its use of copyrighted material in electronic reserves. The ruling, delivered on Friday, looks mostly like a victory for the university, finding that only five of 99 alleged copyright infringements did in fact violate the plaintiffs’ copyrights.
See additional coverage in Inside Higher Ed:
At the same time, however, the judge imposed a strict limit of 10 percent on the volume of a book that may be covered by fair use (a proportion that would cover much, but by no means all, of what was in e-reserves at Georgia State, and probably at many other colleges). And the judge ruled that publishers may have more claims against college and university e-reserves if the publishers offer convenient, reasonably priced systems for getting permission (at a price) to use book excerpts online. The lack of such systems today favored Georgia State, but librarians who were anxiously going through the decision were speculating that some publishers might be prompted now to create such systems, and to charge as much as the courts would permit.
For further analysis of the decision see http://laboratorium.net/archive/2012/05/13/inside_the_georgia_state_opinion by James Grimmelmann and http://blogs.library.duke.edu/scholcomm/2012/05/12/the-gsu-decision-not-an-easy-road-for-anyone/ by Kevin Smith.