Appeal sends Georgia State "e-reserves" fair use case back for decision
- The 11th Circuit Court of Appeals has offered a decision — though not a definitive one — in a long-running suit by publishers against Georgia State University for its library's policy of providing free textbook and other published material excerpts to students for use in their classes.
- Inside Higher Ed reports that the 10-year-old lawsuit was at one time considered significant to universities where campus libraries provided free downloadable "e-reserve" materials. The lawsuit, filed by Oxford University Press, Cambridge University Press and Sage Publications in 2012, claims that such use of copyrighted material is not protected by "fair use" laws.
- Several rulings and appeals were handed back down to a district court by the appeals court, which ruled that an inappropriate formula had been used in determining that 44 of 48 cases were examples of fair use. The appeals court said that each case should have been given "qualitative consideration," and asked the lower court judge to reassess her ruling, according to Inside Higher Ed.
The Association of American Publishers saw the latest ruling as a victory, and the Georgia State Law Library said the case was being "watched by universities around the country to see how a federal court would interpret fair use in regard to electronic copies and educational use." But others thought it was much less consequential.
University of Kansas Library Dean Kevin Smith wrote in a blog post that the decision took too long, did not settle key fair use issues and was not a significant victory for publishers. Plus, he said, the case is perhaps irrelevant because open access and free educational materials have become prevalent, and their use is growing rapidly. And faculty members increasingly handle how course materials go to students, so the responsibility and legal liability does not lie with libraries.
"Open access and the movement toward (open educational resources) have had a profound impact on the way course materials are provided to students," Smith wrote. "So the impact of this case, and of any final decision, if one ever comes, will be negligible."
A report early this year from Babson Survey Research Group showed OER are being used more often by college professors (open-licensed textbook adoption rate was at 9% for 2016-17, up substantially from 5% for 2015-16), and that faculty teaching large introductory courses were using OER about as often as textbooks. It also showed that average textbook costs were $125 per course among the 2,700 professors surveyed, while books from the popular platform OpenStax averaged $31 each.
The survey also found, nonetheless, that professors are often worried about the quality of OER material and student access to accompanying resources such as tests and quizzes and homework assignments. Only about 30% of professors said they were "aware" or "very aware" of OER.
- Inside Higher Education An Unending Copyright Dispute