Copyright Law and Higher Education

Academic publishers want to end the Fair Use of scholarly journal articles in the classroom.


Marc Lynch points me to a bizarre case in which something called the Copyright Clearance Center and a series of academic journal publishers are suing Georgia State University. Duke’s Kevin Smith explains:

First, if this injunction were adopted as proposed, it would enjoin everyone at Georgia State, including students, who would seem to largely lose their fair use rights by virtue of enrolling at GSU.  It would apply to e-reserves, faculty web pages and any learning management systems in use or adopted in the future.  It would make GSU responsible for every conceivable act of copying that took place on their campus.  In short, administrators at Georgia State would have to look over the shoulders of each faculty member whenever they uploaded course material to an LMS or any other web page.  Arguably, they would have to monitor student copying at copiers provided in their libraries, since GSU would be enjoined from “encouraging or facilitating” any copying, beyond a limit of about 4 pages, that was done  without permission.

Not only would GSU have to micromanage each faculty member’s choices about how to teach every class, they would also have to give the plaintiff publishers access to all of the computer systems on campus so that they too could examine each professor’s decisions.

I can only imagine the angry reaction of faculty members if this requirement were actually imposed on our campuses; they might finally rebel against the exploitation they suffer from these “academic” publishers.  In any case the order quite literally asks the impossible and was apparently written by people with no functional knowledge of how higher education actually works.  The administrative costs alone would be staggering, not to mention the permission fees.

Permission fees are the real purpose here, of course.  The goal is to drive more and more money to the Copyright Clearance Center, which is the only source of permission mentioned by name in the draft injunction.  The way the injunction would accomplish this would be by entirely eliminating fair use for Georgia State.

There is absolutely no mention of fair use or section 107 of the copyright law in this proposed order.  Instead, the coping that would be permitted with permission is entirely defined by the bright line rules of the 1976 Guidelines for Classroom Copying (see pp 68-70).  Actually, it is the guidelines PLUS an additional requirement that is being sought as the sole standard for non-permissive copying.

The guidelines’ rule on brevity would entirely circumscribe such copying if this injunction were granted.  That rule permits a copy of only 10% or 1000 words of a prose work, which ever is less.  Many schools that adopt 10% as a fair use standard will be shocked to find that, under this definition, that is often still too much to be acceptable, since the 1000 word limit will usually take over.

Also, the rule about cumulative effect — a limit on the total number of excerpts that can be made — would be enforced across the entire institution.  Two classes could not use the same work without paying permission, and Georgia State would be responsible for making sure that no system across its campus was providing access to any more than two excerpts (for the whole campus and of no more than 1000 words each) by the same author.

Added to these rules from the Guidelines is a new restriction, that no more than 10% of the total reading for any particular class could be provided through non-permissive copying.  The point of this rule is nakedly obvious.  If a campus had the temerity to decide that it was going to follow the rules strictly (since the flexibility which is the point of fair use would be gone) and make sure that all of its class readings fell within the guidelines, they still would be unable to avoid paying permission fees.  Ninety percent of each class’s reading would be required, under this absurd order, to be provided through purchased works or copies for which permission fees were paid, no matter how short the excerpts were.

Now, of course, the injunction is merely being sought; it hasn’t been granted. This thuggish tactic of bringing lawsuits and demanding damages or restrictions that are wildly absurd has become en vogue in recent years by those seeking to protect copyrights. The intent, rather transparently, is to frighten the defendants and cow them into settlements rather than take the risk of such crippling damages being awarded.

As bizarre and outrageous as this all is in the context of blogging and the like, it’s mindboggling in the case of academic use of scholarly journals. That’s the purest case of Fair Use.

Further, Georgia State and other institutions already pay exorbitant fees to subscribe to and then bind academic journals, as well as to provide students and faculty electronic access to said journals precisely because they’re going to be widely distributed.

Most of my student career took place before the Internet era, which meant that I had to use physical copies of books and journals. And I went through several hundred dollars worth of dimes photocopying book chapters, journal articles, and other source materials over the years. The practice was not only accepted but expected: It was simply the only way that an entire class could do the assigned readings.

Smith refers to the “exploitation” of the journal process. Essentially, while their publishers are mostly for-profit companies, almost all the labor that goes into them is donated. The scholars who spend months writing each of the articles and doing painstaking revisions are compensated only with a line on their CV. The scholars who provide the blind peer review that lend the journals their prestige donate their time as a form of professional service; most don’t even bother to list it on their CVs, as it doesn’t count for much. The editorial team is generally housed gratis by the department that employs the lead editor. Adding insult to injury, it’s quite customary in many fields for authors to pay substantial fees for the privilege of donating content to the journal to offset the cost of reproducing photographs and other graphic content.

Presumably, the form that rebellion against this exploitation would take would be collective organization to take the journals away from commercial publishers. That might have been impractical twenty years ago, in that establishing a printing and distribution system is expensive. But there’s simply no reason to produce bound, physical copies of these journals in this day and age.

I’d go Lynch and Smith one further and argue that these articles should not only be open to reproduction for classroom use but should be available free to all on the Web. It’s simply mind-boggling that scholars would spend months of their lives producing a research product only to have it hidden behind a paywall somewhere, inaccessible to those not employed by or attending an academic institution. Subscriptions, even in electronic form, are so outrageously expensive that even most public policy think tanks, including my employer, don’t provide access. It’s quite insane.

FILED UNDER: Economics and Business, Education, Law and the Courts, , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. john personna says:

    Well, not everyone is so nuts:

    How the Open Source Movement Has Changed Education: 10 Success Stories

    Also, Creative Commons – Education

    With the Internet, universal access to education is possible, but its potential is hindered by archaic copyright laws and incompatible technologies. We at Creative Commons work to minimize these barriers, by providing licenses and tools that anyone can use to share their educational materials with the world. Our licenses make textbooks and lesson plans easy to find, easy to share, and easy to customize and combine — helping to realize the full benefits of digitally enabled education.

    I’d like a better copyright system, but at least we can have this counter-movement.

  2. Dave Schuler says:

    When I was in graduate school nearly every class I took used mimeo’d copies of the yet-to-be-published text of the professor teaching the class (at least those that didn’t use the published text of the professor teaching the class). Is the same as or even more widespread now?

    It seems to me that this practice which at least used to be quite commonplace would be threatened by the success of such suits.

  3. Chad S says:

    This is nothing, there’s a patent troll suing app developers for using an button marked “upgrade.”

  4. Rick DeMent says:

    Publishers would like to end the whole notion of “fair use” once and for all. The only thing stopping them is the lobbying cash sine we have finally moved into the era of “pay for play” legislating.

    Remember the motto of American Big business:

    The illegal we do right away, then unconstitutional just takes a little longer. (with my sincere apologies to the Army Corps of Engineers)

  5. george says:

    Students should just buy the text books. After all, your typical upper year text (at least in science and engineering) is only a couple hundred dollars – sometimes for only a hundred pages. And yes, I’m being sarcastic.

    Texts have long been extremely overpriced. Not just publisher’s fault, the way professors assign books plays a big part. And then the cute game of putting out a new version where the only change is the chapter problems, trying to force students to buy new copies rather than using the used text stores around or in most campuses. No wonder students photocopy so much, its fairly common to spend several thousand a year on texts in upper years as it is.

    Grad studies was actually much cheaper – almost no classes, and almost all your reading is from journal articles, typically from journals your prof or at least department subscribes to.

  6. James Joyner says:

    @Doug: Typically, if you’re getting course packets at Kinkos, they’re paying licensing fees to the publisher. Kinkos demands it, as they’re otherwise liable.

    @Michael: I do think you’re in a different position than an academic. Works of fiction are standalone entities written almost entirely on the hopes of sales. That’s the only way the author can feed himself, after all, unless he’s a hobbyist. An academic writing for scholarly journals isn’t paid for sales but by an academic institution that demands he publish to enhance their prestige.

  7. Dave,

    When I was in graduate school nearly every class I took used mimeo’d copies of the yet-to-be-published text of the professor teaching the class (at least those that didn’t use the published text of the professor teaching the class). Is the same as or even more widespread now?

    I had a two-semester class in law school that did basically the same thing, Sometimes it felt like we were helping the professor refine the book.

  8. James Joyner says:

    @Doug Mataconis: “Sometimes it felt like we were helping the professor refine the book.”

    That’s precisely what he was doing. If he wasn’t charging you for the privilege, I’m perfectly fine with that. If he was charging you as if it were a published book, not so much.

  9. @James

    As I recall, I think all we had to pay was the copy charge from the Kinkos where he was having the copies made and bound, which I suppose isn’t unreasonable under the circumstances. It was actually a pretty decent textbook-in-the-making.

    Now in college I’d start every semester with instructions to pick up a package at Kinkos that typically included entire chapters (or more) from other works. That seemed like it might have gone a little bit beyond “fair use”

  10. michael reynolds says:

    I’m in the uncomfortable position of being on the same side as crooks and jerks. I support copyright, but a more relaxed, realistic version of it.

    We were asked on a Reddit IAMA about books we wrote that were out of print for a few years and whether we objected to fans uploading free digital versions. We said basically Hell no, you guys kept the cult alive while the publisher was otherwise occupied. Now that the series is getting back into print it would be great if people paid.

    I support copyright, but various irrational actors — like the academic publishers, like the above-mentioned patent troll — are using it with too heavy a hand.

  11. Jay Tea says:

    Copyright is a strange world — it’s under assault from both sides. In the law, it’s getting more and more draconian. In practice, it’s becoming more and more obsolete. To steal a line from Star Wars, the tighter the copyright holders squeeze, the more slips through their fingers. And technology has been outstripping law for decades with no signs of slowing down in the field of violating copyright.

    I dunno if there is a solution, but both sides are ratcheting up their weapons over and over at every opportunity. And it’s both entertaining and frightening.


  12. john personna says:

    . An academic writing for scholarly journals isn’t paid for sales but by an academic institution that demands he publish to enhance their prestige.

    We could imagine that if academics were well-compensated, with salary and retirement, then part of the deal might be that they publish for the public domain.

    All the hoary scares (starving widows and orphans) don’t apply.

  13. Dave Schuler says:

    Sometimes it felt like we were helping the professor refine the book.

    It was no secret. He said that was what he was doing.

    If I hadn’t been compelled to buy a textbook (that we never used since we used the prof’s pre-publication drafts), that would have been fine with me. However, departmental rules required that every course have a textbook and the draft didn’t count.

  14. steve says:

    I would separate out books from journals. Journals really could be done online. The publishers of these journals are pushing too far. On books, the costs are incredibly high. Since professors control the market, they can require that their own books be used. OTOH, people deserve some sort of fair return on their writing. Methinks we need a functional market for textbooks.


  15. john personna says:

    BTW, I notice that Smith is at Duke, home of the:

    Center for the Study of the Public Domain

    That’s an outfit I have supported in the past.

  16. Greg Ransom says:

    We taxpayers buy this research, then we are put behind a pay wall an forced to pay for it a second time.

    Itnshould all be public domain on the Internet.

    Your school takes a penny of public money, your research is public domain.

  17. As someone who is no longer in college but chooses to read academic journals for the informative content I was griping to myself about this last week. While cost-compensation seems reasonable to me, I can access very few academic journals in the fields of political science and economics for free online. While looking at the prices for online access to some of these journals that I will never be reading I found myself pondering what the goal of these articles is? If it isn’t for the self-satisfaction of professors or the institutions that employee said professors then one would conclude education is the reason. If that’s the case, then why must it cost an arm and a leg to read a single online article? At the very least some kind of reform is overdue.

  18. Grad Student says:

    I think we are having something similar happen here in Michigan. A professor told us she stopped using the e-reserve service, placing scans on blackboard, and etc. because she worried about the copyright issues. Instead she just gave us jstor links to the material. Most if not all universities probably have access to jstor and other similar services so I’d assume while it may cause a minor incontinence, the students can just use these other services to obtain the material.

  19. Greg Ransom says:

    Note well — the top econ journals are owned by the professional guild of academic economists — i.e. the pay wall & monopoly policies keeping ideas from spreading freely is an officialpolicy of the AEA guild.

    Written ideas are almost costlessly reproducable and my acquisition of written idea does mean taking a scarce resource from another.

    I’d like to see an economist defend their gov. monopoly privileges & guild practices.

  20. george says:

    Methinks we need a functional market for textbooks.

    That is indeed the case. The problem is that so much of the demand is artificial – there are in many fields standard works, especially for undergraduate courses, that have been around for decades and do a very good job of explaining the subject (this is especially true in the sciences … for instance, by 4th year quantum mechanics you finish with the Dirac equation, which dates back to the 1940’s). But rather than use these, professors will choose an expensive text which often is less clear in its explanations, and which the students could ignore except for the problem assignments which are based on it.

    There really isn’t a need for a score of new texts on well established undergrad content every year, its an artificial demand created by the publishers and professors, not by the eventual consumers (the students).

  21. why must it cost an arm and a leg to read a single online article?

    That is an excellent question. There have been cases where I needed an article for research purposes from a journal that was not part of any of the services to which our university subscribes and refuse to pay $25 dollars to get one article. Heck, the other day I was made aware of a book review of my book on Colombia that had been published but the journal was not accessible via our library’s databases, so I surfed over to the journal’s web site and they wanted $25 for a 2-3 page book review. No thanks (I will just assume it was a good review and move on).

    I have a good friend who has one of the most downloaded (i.e., purchased) articles from a very prominent journal. He told me he doesn’t see one red cent from those downloads.

  22. Dave Schuler says:

    He told me he doesn’t see one red cent from those downloads.

    And that, in a nutshell, is the problem with current copyright law. I have no problem with creators holding copyrights. I have problems with non-creators holding them and receiving the lion’s share of the proceeds earned by the work.

    That’s a perversion of copyright.

  23. Greg Ransom says:

    As a taxpayer, I paid for that research, as the money stake owner, where are MY “red cents”?

    “I have a good friend who has one of the most downloaded (i.e., purchased) articles from a very prominent journal. He told me he doesn’t see one red cent from those downloads.”

  24. James Joyner says:

    @Greg Ransom: Most academics don’t expect to get paid for journal articles. Some likely resent others making money off those articles.

    And, to the extent that your tax dollars paid for the work, you’ve already gotten what you paid for. Professors are paid to teach classes and do research so as to enhance their teaching and increase public knowledge.

  25. @Greg:

    What James said.

  26. Bruce says:

    Why not all those that are academians e-publish through Amazon for the Kindle (or B&N on the Nook). When the publishers aren’t in control and making money they may change their ways.

  27. Why not all those that are academians e-publish through Amazon for the Kindle (or B&N on the Nook). When the publishers aren’t in control and making money they may change their ways.

    Well, there is some movement in that direction. I have a colleague who is trying to start up a publishing house of that above-described type for his field.

    However, the problem is not just the publishing, it is the peer-review process. Academics don’t write, on balance, to make money. The currency is reputation and the ability to add to knowledge.

    If a given professor simply published straight to Kindle without any kind of academic imprimatur on the work, the work will be taken less seriously (if not ignored).

    However, I do see the model evolving to more web-based distribution.