[digital-copyright] Re: Using a portion of a digital document for an online course

[Brandon Butler <brandon@xxxxxxx>]

This is a fairly complex fact pattern, but I wouldn't rule out fair use.

First, I'd recommend looking at Principle One of the *Code of Best
Practices in Fair Use for Academic and Research Libraries* - available
here:
http://www.arl.org/pp/ppcopyright/codefairuse/code/one-supporting.shtml.
Some of the key issues highlighted in the *Code* include:

   - ensuring that access is limited to enrolled students (i.e., the
   material is posted behind a password for authenticated students, not on the
   open web) and
   - ensuring materials are available only for the duration of the course,
   - avoiding use of material that is expressly designed for educational
   use (not the case here), and
   - providing information to students about their rights and
   responsibilities regarding educational materials.

I'd be willing to bet that much of the discomfort that your publisher
friends are feeling may have to do with their believing, mistakenly, that
assigned readings will be available on the open web, where anyone might
find and download them.

Another helpful guide might be the Georgia State e-reserves case, which
interprets the four fair use factors in the context of e-reserves for
scholarly books. Here's how GSU might apply to this case:

   - The first factor strongly favors educational, non-profit uses like
   these.
   - The second factor will favor fair use of 'factual' works like the
   legal manual in question here, just as it favored fair use of the scholarly
   books and manuals in GSU. Copyright protection is weaker for such works,
   where facts/information/ideas (rather than expression) are the real core of
   the content.
   - The GSU court used a 10%/1chapter criterion for the third factor,
   which your use would not satisfy. (42/292 is about 14% of the total work).
   So factor three does not favor your use.
   - The fourth factor favors your use if there is not an affordable
   license easily obtainable for digital excerpts. Since the company does not
   seem to offer any such license, but rather would insist that students buy
   the entire manual, the fourth factor should favor your use.

So, three out of four factors favor your use. Judge Evans also clarified
that use of up to 18% could still be fair use if the other three factors
favor fairness, as they do in this case. In sum, I'd say the GSU framework
should favor your using excerpts, here, under fair use.

Finally, and surprisingly, I think the 1976 Classroom Guidelines might be
your best friend, here. There's an old rule of thumb from those guidelines
that is sometimes called "First use is fair use," but called "spontaneity"
in the guidelines themselves. The underlying idea is that sometimes you
need to make fair use because there just isn't time to make alternative
arrangements. Here it sounds like the professor is prepared to require
students to purchase the entire manual for future classes, but the current
online class is already under way and there's just not time to obtain the
necessary materials. So, there's a kind of 'emergency fair use' argument
here. Now, that argument would not be available for future classes, but the
above arguments would.

I hope that helps.

Brandon




Brandon Butler | Director of Public Policy Initiatives | Association of
Research Libraries | brandon@xxxxxxx | @ARLpolicy | w: 202.296.2296 x156 |
m: 301.965.0293 | 21 Dupont Circle, DC