Digital Course-Pack Controversy

Is unauthorized copying of copyrighted material "Fair Use" if the motive is explicitly "to save money" by not paying the copyright owners ?

The House Committee on the Judiciary heard testimony on November 19th from the Association of American Publishers. The testimony is well worth reading.

http://judiciary.house.gov/_cache/files/7371dd22-94b4-4d0a-85bf-16a51d1cecad/adler-aap-education-testimony-111914.pdf

Highlight:

In this digital age, there has arisen a “new jurisprudence” of courts that have strayed from the statutory language and Supreme Court precedent to justify practices that apply Fair Use differently to digital materials than to print.

 
Comment:
Some courts have given less weight to the impact of systemmatic unlicensed copying of digital materials on the market for legal, licensed copies than to subjective ideas of "the public good" (and of course, the consumer will always prefer "free"), and those who would bilk authors for their own benefit will always claim that scanning a print work to create a digital copy is "transformative".

Highlight:

There is no general or per se exception for use of copyrighted material for educational purposes or by non-profit educational institutions under the U.S. Copyright Act, and such uses are not “presumptively” fair use. 

Comment
See P 3 for more on this. Teachers were never given a free pass to make multiple copies of copyrighted works to save their students money if that copying did not meet the criteria of "Fair Use".

Highlight

Notwithstanding clear Congressional intent and Supreme Court precedent, court rulings in pending copyright infringement litigation by academic publishers against Georgia State University (“GSU”) have exhibited troubling hallmarks of the “new jurisprudence.” 

.... The GSU litigation concerns the university’s claim that its notable changeover from providing students with licensed paper “course packs” of portions of copyrighted works for curriculum reading to providing unlicensed digital versions of the same kind of materials for the same purpose is protected fair use.

 

..... the GSU case is about “a university-wide practice” of substituting unlicensed digital course packs for licensed paper course packs “primarily to save money.” GSU had always paid permission fees to use copyrighted works in a paper format but refused to do so when it used the same or similar copyrighted works in a digital format for the same purpose.

Comment: According to the principle of "media neutrality", a copyrighted work is copyright protected in all media. A faithful and exact digital copy of a work in print is not a transformation. It is a copy.

There's a great deal more in the testimony to inform and delight. I hope you check it out.

:-)
Rowena Cherry