UPDATE – Since I wrote this post, Professor Niva Elkin-Koren of Haifa University has kindly informed me that an English translation of the settlement agreement discussed below is now available on the Israeli A2K in Higher Education website. The direct link to the translated settlement is here.
Ever since the Georgia State copyright lawsuit over e-reserves began, people have suggested an analogy to the ill-fated and now renounced litigation campaign by the recording industry against customers who downloaded music files. It took years, but it finally dawned on the recording industry that suing your own customers was a bad strategy, pursued only by a desperate industry that cannot figure out how to retool their businesses to offer services that people really need and want. But as I tell folks, the publishers suing Georgia State have made an even more foolish decision, since they are suing people who are not just their customers, but also their suppliers. The very academics that are vilified as thieves in this lawsuit are the ones who produce the content that Oxford, Cambridge and Sage take, usually for free, to resell at a high profit. This is one reason why the publishers cannot win this case, even if the 11th Circuit follows the ill-logic they displayed at oral arguments and gives the publishers some kind of Phyrrhic victory. The attention they are bringing to their own greed and mismanagement will drive more of the authors they depend on to stop giving these publishers free content to sell, and the current economics of higher education guarantees that they will not be able to offset their losses through the increased permission fees they dream about.
All of this is old news. But as these three publishers continue to pursue a suicide mission in the U.S., we can see that other, more sensible segments of the same industry, are taking a more sensible approach. As this blog post from University of Toronto law professor Ariel Katz describes, publishers and academic groups in Israel have come to an agreement about fair use that shows just how grasping and ill-conceived the GSU case is.
Israel adopted a fair use provision nearly identical in language to the U.S. provision in the 2007 revision of its (Israel’s) copyright law. And, just as in the U.S., a couple of Israeli publishers brought a lawsuit against Hebrew University alleging copyright infringing, a case clearly designed to test and define the limits of the new fair use provision. But in Israel the case has settled, with an agreement announced last week that defines fair use in a very sensible way that indicates a real commitment to scholarship and education on the part of these Israeli publishers, something wholly lacking from the U.S. plaintiffs.
According to Katz, the settlement in the Israeli case recognizes that both e-reserves and course packs are fair uses of copyrighted material, with full journal articles and excerpts of up to 20% of books falling within the fair use definition. Note that this agreement allows unauthorized excerpts that are twice as long as the ones tolerated by Judge Evans in the GSU trial decision, which the U.S. publishers are disputing. This, like a great deal of other evidence, shows us that the U.S. plaintiffs are not simply trying to protect their businesses, as they claim; they are asking the courts to grant them windfall profits they have not earned and do not deserve. Apparently these smaller Israeli publishers think they can live with this agreement, while some of the richest academic publishers in the world are crying poverty to the U.S. 11th Circuit.
There are some additional qualifications on this Israeli settlement that are worth noting. The e-reserve systems must be accessible only to students registered for a specific class in order to be fair use, something that is almost always true in the U.S. as well. Course packs must be produced only on demand and sold only to students registered in a class and at cost. These limitations are, I believe, things that U.S. higher education would be happy to abide by as well, but the publishers appear to be unwilling to show the same spirit of compromise that their Israeli colleagues have. Finally, Hebrew University has agreed to pay legal costs for the publishers– less than $100,000 — without admitting any culpability for copyright infringement. Overall, this is a sensible compromise between sensible parties, something foreclosed in the U.S. by the irrational greed of the GSU plaintiffs.
As Katz points out, this agreement in Israel is not a license being granted to universities by publishers; it is a definition of fair use within a specified context. And, interestingly, it includes a mutual recognition of the Code of Best Practices for Use of Works in Research and Teaching that has been developed in Israel to interpret fair use. This Code of Best Practices is similar in some ways to the Code from the Association of Research Libraries; it is certainly not more conservative than the ARL Code. The Israeli Code explicitly recognizes that the amount used should be considered in relationship to the purpose, and that a loss of income to the publisher does not automatically foreclose fair use. In thinking about the nature of the original, a topic that confused the 11th Circuit judges so badly, the Israeli Code does not waste time debating factual versus fictional and instead recognizes the greater accessibility required for works “of an academic character.” It also adopts the same fourth factor criteria favoring fair use that Judge Evans used in the GSU trial, the unavailability of licenses specifically for electronic use. Finally, the Israeli Code treats transformative fair use properly, recognizing that transformation is an important but not required element of the first factor analysis, and that transformation can occur either through actual alterations to the original or when there is a “use of a work in a different manner or for a different purpose or function than that of the original work.”
The Israeli Code of Best Practices is very much worth reading, and there is an interesting article about the Israeli experience with fair use for higher education by four academics available here.
All of this, as well as discussions about fair use in Canada, Great Britain and Japan, suggest that the rest of the world is getting the hang of fair use. They are realizing that fair use is absolutely essential for a copyright law in the digital age, lest the exclusive rights become an economic and technological drag on a nation. What Judge Evans decided in the GSU case was squarely in the mainstream of fair use thinking; it was even rather conservative when viewed through the lens of developing international thinking about fair use in a digital age. If the silly misunderstandings of the 11th Circuit panel of judges lead them in another direction, it will be one more obstacle that will eventually have to be overcome to prevent cultural and economic stagnation. But internationally, the trend is to ensure that fair use serves education and eases the transition to digital teaching and learning, a goal that at least some publishers seem to support.