When a professor scans part of a textbook, uploads a video or posts some readings on Sakai, copyright experts say they are stepping into a legal gray area.
Professors cite “fair use” — which is a legal defense established in 1976 copyright laws — to use copyrighted work for classes without permission from a publisher or author.
“Fair use” defense
In the 1976 Copyright Act, a provision states that four factors make up a “fair use” defense. If any of these factors are violated, the situation is considered a copyright violation.
- the purpose and character of the use
- the nature of the copyrighted work
- the amount and substantiality of the portion used
- the effect on the market value of the copyrighted work
Deborah Gerhardt, a UNC law professor, said copyright law is interpreted on a case-by-case basis.
“Really it’s impossible to give advice on ‘fair use’ in a vacuum,” she said. “Depending on what it is, it might not even be copyright infringement at all.”
Under the “fair use” defense, courts consider four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used and the effect on the value of the copyrighted work.
If any of these factors are violated, it can be considered a copyright violation.
Gerhardt said course packs — collections of readings or problems necessary for a class — that some professors require can be a source of conflict between the creators of the work and the users. Course packs are sold at UNC Student Stores.
“Publishers have thought that they may be entitled to revenue from those,” Gerhardt said.
But in some cases, the publishers receive no revenue.
Readings that are available for free online pose problems for publishers that would have made money on them in print.
Freshman Isabel Hutchens said she imagines it is difficult for publishers to make money off readings that she can access easily online.
“But I still don’t want to buy them,” she said.
UNC economics professor Boone Turchi said his approach to assigning readings has changed with the rise of the Internet.
“Before the web was a major factor, I would have the Student Stores make a course pack and they would seek permission to use a copyright, and when the publishers said no or asked for an exorbitant fee, I would omit (that reading) from the course pack,” he said.
Now, he said he doesn’t assign readings outside of textbooks that are protected by copyright law.
Victoria Ekstrand, a media law professor at UNC, said copyright law is unique because the burden of proof is on the infringer, not the prosecutor.
“It’s about the balance we strike between people’s ability to profit from what they create and our ability to use what we want,” she said. “We’re worried that if we go too far with copyright law, we risk shutting down the marketplace of ideas.”
The crux of determining a copyright infringement is often whether the heart of the work, or the thesis, is shared for free, said Anne Gilliland, Davis Library’s copyright expert for professors and students.
“The good thing and the bad thing about ‘fair use’ is that it is so vague,” she said. “Uses in teaching can be ‘fair use,’ but it depends on the market harm and the other three factors.”
Gilliand said precedents are still being built around the evolving issue.
In 1991, a U.S. District Court said that Kinko’s, a photocopying business, infringed on publishers’ rights by copying excerpts from books and selling them in course packs to college students, said Coe Ramsey, a copyright expert at Raleigh law firm Brooks Pierce.
The court rejected the “fair use” defense because copies were being made for profit, critical portions of the books were being copied and the course packs replaced the need for students to purchase the full texts, he said.
More recently, Georgia State University was taken to court for copyright violations through its e-reserves system. The court decided in favor of Georgia State University in 2012, but Gilliland said the appeals process is still ongoing.
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