Most students would be shocked to know that their professor had broken the law, and even more surprised to find out that they had witnessed it. But as unlikely as that situation seems, it happened on a daily basis last year and probably would have continued this year if the University had not been threatened with a lawsuit.
Last spring, the American Association of Publishers contacted Cornell and informed the University that the library e-Reserve and system of posting copyrighted material online at course websites were in violation of copyright law and they would sue if the practice was not stopped. An agreement was reached this fall, and Cornell now has a new set of copyright compliance guidelines formed by a committee with members both from the University and the AAP.
According to Patricia McClary, associate university council, the university will not face penalties for past behavior as no lawsuit was ever started. She did not want to speculate on how close the process came to actual litigation, and said that “Cornell and the AAP worked cooperatively from the outset.”
Provost Biddy Martin explained the resulting guidelines to all faculty members in a memo. There are no dramatic differences from prior policy, and the new version explicitly states that the same copyright rules that apply to reprinting protected work apply to posting work online.
With course packets, faculty bring the selections to the Cornell Store, which is then responsible for obtaining copyright permission, and passes the fees on to the students who buy the packets. However, when posting material online, copyright compliance is the responsibility of the professor. With Blackboard or other course websites, the professor is responsible for making sure not to violate copyright laws by uploading material. With e-Reserve, the library asks that all of the proper permissions have been obtained, but does not police the professors.
Peter Hirtle, the university copyright compliance officer, explains the problem as a lack of understanding about electronic media. “Faculty members are now where students were five years ago with Napster. Just because it’s easy to take something and put it on a website doesn’t mean it’s legal to do so.”
A lot of the confusion stems from the concept of “fair use.” U.S. copyright law does not consider making multiple copies of material for classroom use an infringement of copyright. However, there are further conditions. The four factors taken into account when determining fair use are the purpose of the use, the nature of the work, the amount being used, and the effect upon market sales. Generally for class readings, the purpose and the nature of the work are approved, and most professors are careful to not sample more than a small amount of the book, such as a chapter, or 10 percent of a book as a general rule. The problem lies in how posting material online impacts on market sales, since students are able to access material without having to purchase the book or journal.
It is generally allowed for professors to use an excerpt one time, but repeated use is a bit more complicated. Using the same material over again is necessary for professors, as it would be impossible to choose completely new readings every time they teach the same course. However, repeated use is considered to have adverse impact on market sales. “We don’t know if repeated use is allowed… that’s a question we have not addressed.” Hirtle said. He added later, “The only time you know for sure if something is fair use is when five members of the Supreme Court say it is.”
The administration is working to educate faculty about copyright compliance in the digital age. McClary said that the Provost has worked with the Dean of the Faculty and the College Deans to pass on information about the guidelines. The University is also holding a copyright workshop series this fall, which included a past workshop about copyright and e-Reserves, and will cover issues facing copyright for those who produce content as well.
At this time, it is still unknown how the new compliance guidelines will affect the cost for students. The School of Labor and Industrial Relations and the Law School currently pay the necessary fee for a professor to post copyrighted work online, and right now, there is no way to charge students taking a certain course for access to online materials. Whenever possible, faculty try to link to readings that are already available through online library subscriptions, a legal way to save their students money.