Managing Copyright Risk: A Balancing Act

DISCUSSIONS ABOUT copyright have become increasingly polarized, with “protect my property from piracy” at one extreme, and “information wants to be free” at the other. In-plants that process materials containing third-party copyrighted material are in an unenviable position, caught between rights holders who require compensation for use of their intellectual property and customers who want quick, inexpensive or free use of desired content. To choose the right position on the copyright compliance spectrum for your in-plant, you must stay informed, adjusting your policy as statutes, litigation and guidelines evolve. Your in-plant can add value, increasing customer satisfaction, by expediting necessary clearance and helping to reduce royalty costs. Diligent clearance protects your customer, your institution and your in-plant from potential liability for copyright infringement.

Online resources make it easy to stay abreast of evolving copyright issues. The Chronicle of Higher Education and Inside Higher Ed both offer timely analysis of important news. Periodically searching “copyright” on their Web sites will keep you up to date on major developments. Classic reference sites now include blogs and news archives that cover emerging topics in detail. In the following copyright news items, you will find additional resources you can use to keep current.

The Cornell, Hofstra, Marquette and Syracuse Universities Guidelines

In 2006, under threat of litigation for unauthorized electronic use of copyrighted materials, Cornell University agreed to implement Association of American Publishers (AAP) guidelines governing electronic use of copyrighted content. According to these guidelines, any copyrighted content that requires permission for print use likewise requires permission for digital use. The AAP subsequently negotiated similar guidelines with Hofstra, Marquette and Syracuse Universities.

Coverage was quickly posted to the Copyright Clearance Center’s Copyright Central in © News, and The Chronicle carried an article shortly after the additional agreements were announced in January, 2008. The AAP news release stated that the new guidelines “clarify that the use of copyrighted works in digital formats requires… permission.” The Chronicle quoted Georgia Harper, scholarly communications advisor for the University of Texas at Austin libraries, who characterized some language in the agreements as “ambiguous and unhelpful.”

The Library Journal Academic Newswire expressed concern that “charged discussions over the use of electronic content have placed universities in a tenuous position: go too far and get sued, don’t push and you limit the academic mission.” In the same piece, Georgia Harper advises caution, “…as a general counsel of a university, the mission is to advise your client of the reality of the risks, and it’s not looking good for that principle [multiple copies for classroom use].”

Given the controversies, it would seem wise for in-plant managers to consult with corporate or university counsel, to make certain that your policies on electronic usage of copyrighted material are closely aligned with those of your organization.

The Georgia State University Lawsuit

In April, 2008, Oxford University Press, Sage Publications and Cambridge University Press, supported by the AAP, filed a lawsuit against four Georgia State University officials over the use of electronic course materials. The complaint (www.publishers.org/main/PressCenter/documents/GSUlawsuitcomplaint.pdf) named the president, provost, associate provost for information systems and technology, and dean of libraries in their official capacity, alleging “systematic, widespread and unauthorized copying and distribution of a vast amount of copyrighted works.”

While state sovereign immunity may protect GSU from a federal copyright suit, officials of a state institution may be sued in their official capacity, as long as the suit seeks injunctive relief, but no monetary damages. Thus, by suing university officials, publishers demonstrated that state institutions are not completely protected from litigation. Though the AAP has sought broad endorsement of the guidelines established with Cornell, Hofstra, Marquette and Syracuse Universities (see sidebar), no consensus has yet emerged. A judicial decision governing future conduct at Georgia State would reinforce the publishers’ initiative.

In a Chronicle of Higher Education Wired Campus column, Andrea Foster quoted Laura N. Gasaway, associate dean for academic affairs and a professor at the University of North Carolina at Chapel Hill School of Law, who stated that she thinks the case will be resolved by a settlement that could require Georgia State “to adopt certain policies in order for the publishers to drop their litigation.”

Marketing Information Masters v. Trustees of the California State University

The litigation in Marketing Information Masters v. Trustees of the California State University System and Robert A. Rauch was reported on Mary Minow’s Fairly Used Blog at the Stanford University Libraries Copyright and Fair Use site. Marketing Information Masters sued for copyright infringement, alleging that substantial portions of a 2003 Marketing Information Masters report appeared in a 2004 report prepared by Rauch, an affiliate of the San Diego State University Center for Hospitality and Tourism Research.

In an interview with Minow, Jonathan Pink, attorney for the defendants, stated that the court had decided “that a State, employee of a State (acting within his or her official capacity) or instrumentality of a State cannot be held liable for copyright infringement.”

Another early opinion in the case was noted on The Patry Copyright Blog: “the court, while dismissing the case against the university, allowed it to [move] forward against the individual university employee who was involved in the copying, Mr. Rauch.” Patry cites the February, 2008, decision by Judge John A. Houston, Civil No. 06CV1682 JAH: “Based on the [amended complaint], which includes allegations that Rauch personally engaged in the infringing behavior, the Court finds Plaintiff seeks relief from Rauch in his individual capacity as well as [his] official capacity. Accordingly, Rauch is not entitled to sovereign immunity from the suit seeking relief against him in his individual capacity.”

Pink explained the court’s rationale: “… a state employee will be subjected to suit in his or her individual capacity even though he or she had been acting as an agent of the State if it is shown that the employee’s conduct was ultra vires [beyond the powers of] his or her delegated authority, e.g. by violating a federal law.” This aspect of the case unsettled many employees of state institutions, as they generally see themselves protected from personal liability by the sovereign immunity of the state.

Marketing Information Masters was recently settled for a small damage award to the plaintiffs, so no further judicial opinion will be forthcoming. Detailed information regarding copyright liability may be found at the University of Texas Copyright Crash Course, “University Liability for Faculty Infringements.”

Given the Georgia State University suit and Marketing Information Masters, it seems a good moment to check your institution’s policies regarding employee and institutional liability.

The best defense against liability, of course, is prevention: Be aware, be informed and promote copyright compliance.

.

Lynne Woods has been course materials program manager for the Print and Digital Communications unit at Michigan State University since 1994. She collaborates with the MSU Library and MSU Technologies to give seminars on copyright to campus groups, and she presented at SUPDMC 2007. With an M.A. in Spanish from MSU, Lynne began her career in university teaching. She also studied at the Universidad de Valencia, the Sorbonne, the Goethe-Institut (Berlin), Indiana University, and the Institut d’Etudes Théâtrales in Paris. You can contact her at lynne.woods@ur.msu.edu