Cambridge University Press, Oxford University Press and Sage Publications, Inc. recently lost a case charging Georgia State University with copyright infringement in the matter of digital copy reserves for class study. The plaintiffs allege that GSU administrators systematically encouraged faculty to offer unlicensed digital copies to students as a no-cost alternative to traditionally licensed course-packs. Having appealed, the publishers have lost again, as Publishers Weekly reports. The publishers are reviewing options, and may appeal, at least the damages awarded.

This seems to me a travesty — I base my view on the playground view of fairness rather than a strict application of the law, so of course I know before you object that I’m just wrong, wrong, wrong. But somehow the law has to be screwed up here. Can it really be that authors should go unremunerated for material they write which has the “misfortune” to be “adopted” for class use by a college? That just cannot be the intention of the copyright law. The situation has to be “merely” a consequence of badly drafted laws.

The law does clearly state that multiple copies for class use can be regarded as fair use, though such use would also have to pass the four factor test. (The relevant clause is quoted in my earlier post, linked to above.) Factor 1 is against the publishers, but it’s hard to see how digital reserves for class use could pass the fourth test: if publishers bring out a book for a class market, it’s surely going to affect the market if teachers are allowed to reserve an electronic text for the free use of all their students. Still, judgements don’t get made on the basis of one general factor: it’s detail and balance that the judge is seeking. If indeed the Court did argue that despite publishers mostly maintaining systems for licensing of paper excerpts, the fact that many do not have systems for licensing digital excerpts shows that there is no market for the licensing of digital excerpts, that just seems willfully dumb. What the situation suggests to anyone who has worked in publishing is that publishers have been slow to confront something which they regarded as a minor issue — criminally slow and arrogantly carefree. This omission is however surely not enough to justify making no payments to authors (and the publishers as their agents). Well, of course, in law it probably is. In the school playground though, no way.

We live in the world we live it: and in that world this judgement just isn’t fair. One could see a world in which it might be OK to use an author’s work free of charge for educational purposes: a world in which the system of remuneration for the work of compiling the material might be awarded differently. One could envisage a world in which students could attend university free of charge, and would be given the books, course-packs, and everything they needed for the learning process free of charge. It’s as easy as Bernie Sanders saying so. But of course such a world, however desirable, isn’t going to be a world in which university teachers work for free: it’d be a world in which we had worked out a way for the cost of tertiary eduction to be paid for from central government funds. We could of course have arguments about whether it was more important to get healthcare centralized like this before college education, or even a basic income which might collapse many government welfare programs into a single monthly payment to every adult not in full-time (free) education. The number of things we could ask our governments to fund for us is almost infinite: the resources the government has access to are not. So there would need to be action on the revenue side too. It does seem to me that there should in theory be enough out there to make something like this possible, but raising the tax just doesn’t seem politically feasible. The plan is all too radical for any non-revolutionary world we know of. Still, if authors were paid a fee, a stipend, an honorarium, a wage by central government, they could happily see their work distributed free to students. I’m not sure why the law courts should decide that in the absence of that tat, the tit of allowing students to use the product of their labor free of charge should be acceptable.

 

Not that it has any relevance in this discussion, but just in case some zealots are tempted to jump up and shout “But textbooks are ridiculously expensive. Publishers have been gouging us for years: it’s now payback time”, I will add that no doubt there are cases in which publishers have overcharged, or appear to have overcharged, but that this seems to present no reason to me for stealing the copyrighted work of an author (a different author too no doubt), however noble the use intended. (See also my earlier discussion of the expense of textbooks.)

 

 

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