Tuesday, October 21, 2014

Digital Course Packets At College Can be Infringing

The Eleventh Circuit spent over a hundred pages explaining why digital course packets, prepared by college professors for downloading by students, may infringe the copyright in the copied material. The opinion is here. Several academic publishers sued Georgia State for failing to obtain consent and pay license fees when professors copied portions of copyrighted material for downloading by students. These digital course packets supplanted traditional paper course packets, for which GSU did obtain consent and pay a license. The appellate court spent considerable effort setting out the law of fair use and the interplay of fair use principles. Indeed, the opinion can be used as a copyright fair use treatise.

The concurring opinion summed it up best, however, by explaining that in a fair use analysis, this "case reveals the critical need to see the 'big picture' when attempting to determine what constitutes fair use of copyright work. * * * analyzing fair use, and after applying traditional common law principles to the use at issue here, this is rather a simple case."

This case does not involve an isolated event of a professor copying a single copyrighted work, or a one-time use of copyrighted material. Rather, the case involves a university-wide practice of using digital course packs, for which the university refused to pay a license, as a substitute for paper course packs, for which the university did pay a license. "This was done for the vast majority of courses offered at GSU and, as will be seen, it was done primarily to save money."

The majority opinion, in excess of 100 pages, analyses the nuances of copyright fair use in considerable detail as applied to academic use of course packs containing copies of copyrighted material. But as pointed out by the concurring judge, stepping back to take in the big picture can produce a much simpler, more direct, and more accurate result.

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