Issue Contents

Fair Use and the Case Against Georgia State University: Revisiting Course Packs

Linda K. Enghagen, J.D., Professor
University of Massachusetts at Amherst

Given the complexity of copyright law, it is becoming more and more common to find comparisons made between it and the Internal Revenue Code. Perhaps, then, it is fitting that the complaint filed against Georgia State University is dated April 15, 2008. Three publishing companies brought the suit against four Georgia State University (GSU) officials claiming that the manner in which the publishers' copyrighted works are posted to the university's e-reserve system, online courses and course related web sites violates copyright law and is not protected by fair use. The complaint doesn't ask for monetary damages, but seeks to obtain an injunction preventing GSU from continuing its allegedly infringing practices.

According to the complaint, GSU engages in the "systematic, widespread, and unauthorized copying and distribution of a vast amount of copyrighted works...through a variety of online systems and outlets utilized...for the digital distribution of course reading material...without the requisite authorization and appropriate compensation to the copyright owners of such materials." Remove the reference to digital distribution and the underlying allegations sound remarkably familiar. The case against GSU is the case many expected to see someday. It asks many of the same questions posed in Basic Books, Inc. v. Kinko's Graphics Corp. and Princeton University Press v. Michigan Documents Services only this time the defendant is not a for-profit private business, but a not-for-profit educational institution.

In the Kinko's and Michigan Documents Services cases, the facts were straightforward and essentially identical. Each involved a private enterprise generating profits from the sale of course packs. Each attempted to defend itself claiming fair use permitted such copying and distribution because the materials in the course packs were selected for specific courses by specific professors who then used them in non-profit educational settings. In each, the courts disagreed. While acknowledging that the end use of the course packs was for nonprofit educational purposes, the copying and distribution were engaged in for profit. Consequently, both Kinko's and Michigan Documents Services lost the fair use argument and were found to be engaging in copyright infringement. If the GSU case goes to trial (as opposed to, for example, settling out of court), the extent to which the law calls for a different conclusion when the copying and distribution are performed by and in a nonprofit educational setting may be finally determined.

The publishers case against GSU raises a second question that if resolved will bring a higher degree of clarity to copyright law in educational settings. Essentially, the publishers argue that fair use doesn't apply to GSU's practices because there is a reasonable means by which permissions can be obtained and royalties paid to copyright owners. This line of argument is often referred to as the 'market failure theory' of fair use. That is, when the market fails to provide a reasonably efficient and reasonably priced means to obtain permissions and pay royalties, then fair use applies. However, if such a market exits, there is no fair use. Obviously, this is a very restrictive view that obliterates fair use any time someone figures out a reasonable way to profit from his or her copyrights.

Undoubtedly, as the news of the lawsuit hit the press, educators around the country breathed a sigh of relief as they realized "Thank God. Not me. Not us." For GSU, the reality is quite different. On the one hand, GSU is in a position to make history-not an altogether bad thing. And, the rest of us may learn more about and gain a higher degree of certainty about the proper application of copyright and fair use law in educational settings. Unfortunately, there is the other hand. When it comes to lawsuits, being poised to make history comes at a price. In this case, that price is borne by GSU.

(Join Linda K. Enghagen, J.D., University of Massachusetts at Amherst, in the Sloan-C online workshop, Fair Use & The TEACH Act: A Closer Look, May 21 - 30.)

Global Trends in Distance Education

Gary E. Miller, D.Ed.
Executive Director Emeritus
Penn State World Campus

In April, I was privileged to represent the Sloan Consortium at an important Latin American conference on distance education in Loja, Ecuador. The conference was sponsored by CREAD--the Inter-American Distance Education Network--and Virtua Educa in Spain. It was hosted by the Universidad Technica Particular de Loja. The conference brought together leaders from across Latin America, as well as representatives of several major regional consortia and associations. These included the Asian Association of Open Universities, the Commonwealth of Learning, the European Association of Distance Teaching Universities, and the Sloan Consortium.

The result was a very focused look at how new challenges and the issue of quality in distance education are being addressed globally. In addition, there was a significant focus on Open Educational Resources, including a special session in which Ecuador officially became the 45th nation to adopt the Creative Commons licensing protocols.

One of the keynote speakers was Stemenka Uvalic from UNESCO. She painted this picture in her keynote: There are now 132 million postsecondary students worldwide; China and India have doubled their enrollments in the past decade. However, countries are having trouble funding capacity to handle demand. This has stimulated three trends: (1) new private (profit and nonprofit) institutions that do not receive government funds (she noted that 80% of postsecondary students in Japan are now in private institutions); (2) student mobility-2.4 million students went abroad in 2004, with 1 in 16 postsecondary students from Africa going abroad; and (3) the growth in open and distance learning (ODL). The number of open universities has doubled in Commonwealth countries; the number of for-profit online providers is growing globally (she cited Symbasis in India as an example). This has an impact on student mobility. Fully a third of all international students enrolled in Australian institutions studied from their home country in 2004. Uvalic projected that "cross-border distance education may become the most significant development" in the years ahead.

Video of this and other keynote presentations (some are in Spanish, some in English) are available at these sites:

Blog: http://www.utpl.edu.ec/calidaded2/calidaded2blog/
Youtube: http://www.youtube.com/utpl

Learn From the Experts - The Sloan-C 2008 Workshop Series

Fair Use & The TEACH Act: A Closer Look* - June 18 - 27

For those who already possess a basic understanding of copyright law, this workshop offers a closer look at the fair use defense and The TEACH Act. First, the workshop will report on recent research surveying fair use decisions that offers insight into how courts really evaluate the fair use factors when confronted with actual cases. In addition, the 9th Circuit's recent decision in Perfect 10 v. Amazon.com, Google.com et al. will be discussed. It provides an important reminder that fair use analysis is not to be approached in a formulaic manner but with the overriding goal of advancing creativity. Finally, The TEACH Act is now five years old. This workshop will also take a closer look at what we now know about its implementation and impact.

*This workshop is part of the Select Series and College Pass Members must use their additional 50 seats provided to take advantage of this workshop.

Click here for details and registration.

Workload Management Strategies for Online Educators* - July 9 - 18

Instructors need to develop new time management skills when transitioning to online teaching. Online teaching can redefine faculty members' teaching schedules. While the advantages for participating in online education include flexibility; the reality of the 24/7 classroom can prove daunting due to the investment in curriculum development and planning as well as the need to be responsive to student inquiries. This workshop offers strategies enabling online educators to manage time demands while teaching online courses. Topics include: course planning, information presentation, frequency of interaction, and scheduling.

*This workshop is part of the Select Series and College Pass Members must use their additional 50 seats provided to take advantage of this workshop.

Click here for details and registration.

Using Moodle to Create Online Courses - July 9 - 18

Moodle is an open source Learning Management System and is a low cost alternative for educators to create vibrant online content. This workshop will define Moodle and it's features. Later, the facilitators will illustrate how to use Moodle to create an online course and take participants through the actual process of creating actual course content with Moodle. Following the workshop participants will have a working knowledge of Moodle and will be prepared to create their own effective online courses with this open source tool.

Click here for details and registration.

The Sloan Consortium (Sloan-C), sponsored by the Alfred P. Sloan Foundation, is composed of institutions and organizations dedicated to continually improving the quality, scale, and breadth of their online programs, according to their own distinctive missions, so that education becomes a part of everyday life, accessible and affordable for anyone, anywhere, at any time, in a wide variety of disciplines.

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