As digital technology proliferates, legislation and the publishing industry are racing to keep up with the possibilities for file-sharing, website posting, and other forms of electronic exchange of copyrighted materials. Publishers are working to crack down on the digital circulation of documents without permission, and universities are rapidly becoming one their main targets for copyright enforcement.
Over the last few decades, most lawsuits involving copyright infringement of academic materials dealt with the duplication of articles and book chapters for course packets without proper permissions.
However, investigators are now shifting their focus from companies profiting from the reproduction of copyrighted academic materials to individuals acquiring and exchanging those materials online for educational purposes, most often professors and students.
“They are in a prosecuting mood,” said Michael Bowman, interim assistant university librarian for Portland State’s Public Services Library. “In the past, they were looking for systemic violations at places like Clean Copy. Now, they’re going for individuals. It’s easier to pursue individuals, like it was with the music industry. It’s a smaller scale.”
As educational institutions, universities are permitted “fair use” of copyrighted work, which allows for the reproduction of limited portions of that work without permission under very particular circumstances. These portions must be short (one poem, story, essay, or two excerpts less than 1,00 words, per author), may only be used for one course, and may only be made available to students for one term. They must contain a notice of copyright, and must meet “spontaneity” standards – that is, the decision to use the material for instruction must have been made too close to the time it was needed to secure permission from the copyright holder.
The process of securing copyright permission takes four to six weeks, and this is where many professors putting together course materials get into trouble. If they wait too long to fill out their paperwork for permissions, they may be tempted to save themselves the trouble and hand out photocopies or upload the documents onto websites for student access.
“There was a problem earlier this year with the appropriate use of course packs,” said Bowman. “It involved copying whole books. The departments have cracked down since then.
“Most faculty are accidentally breaking the law, not intentionally,” said Ken Brown, manager and CEO of the Portland State Bookstore.
With a growing student demand for low cost e-reserves as an alternative to course packs, the Portland State Library is taking on a growing role in the management of digital copyright issues.
“Libraries and universities have a broad range of what they permit,” said Bowman. “We’re in the middle, maybe slightly conservative – the fair use guidelines are fairly vague. The faculty wants us to be more open than we are, but they’re not the ones that are going to be sued.”
When professors want to place an article on e-reserve, the library will try to link to the journal directly, if it holds an on-line subscription. If the article is not available in the its online holdings, the library will put a scanned version online for one quarter only, unless the professor gets the copyright permission.
“Faculty have to fill out a form saying they are getting the copyright permission,” said Bowman. “That way, they get sued if there is a problem. It’s a lot of work to get the copyright permission. The copyright holders almost always say yes, but if faculty wait until the last minute … “
Copyright infringement can cost up to $35,000 per violation, and professors who violate copyright law are also in breach of contract with the University, which includes adherence to intellectual property law in its employment agreements.
“Some of the concerns are that publishers will come after the institutions, or individual students,” said Brown.
Many students and professors are turning to digital sources of dubious legality because of the skyrocketing prices of textbooks.
“What’s becoming more common is the scanning of entire textbooks, and making them available on filesharing networks,” said Bowman. “Students, with the enormous cost of textbooks, are going after illegal copies online, and getting hit.”
Illegal downloads are easy to trace, particularly on university campuses. The Recording Industry Association of America has increasingly focused its investigations on university networks, because college-age students, who have little money but a lot of bandwidth, represent a disproportionate percentage of illicit downloaders. This scrutiny means that broke students trying to download any copyrighted materials are more likely to get caught.
“People who are sued don’t win,” said Bowman. “They usually settle for about $10,000.”
Portland State administrators are in the process of setting up a task force on textbooks to educate faculty on resources and alternatives to reduce course material costs to their students, including print reserves, e-reserves, and e-books purchased through legal channels.
“Better choices on the part of faculty members can eliminate some of these issues,” said Bowman.