The Georgia State Litigation: Literal Copying in Education
| Date | 01 May 2019 |
| Published date | 01 May 2019 |
| DOI | http://doi.org/10.1111/1468-2230.12416 |
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Modern Law Review
DOI: 10.1111/1468-2230.12416
The Georgia State Litigation: Literal Copying
in Education
Emily Hudson∗
This case note examines the long-standing litigation against Georgia State University in relation
to the posting, by faculty and library staff, of unauthorised copies of book extracts on the
University’s electronic reserves and virtual learning environment. The central question in this
litigation has been whether these acts of copying fall within the fair use doctrine in US copyright
law. In answering this, a key question for the US courts – and one relevantto other jur isdictions
with free exceptions for education, such as the UK – has been whether existing and potential
licensing activity is relevant to the question of whether an exception applies. This case note
discusses how market effect has been analysed in Georgia State, including the recent rejection by
the Court of Appeals for the Eleventh Circuit of a strongly empirical approach to market harm.
INTRODUCTION
The treatment of education has long been a challenge in copyright law.1The
need to support education is clear, due both to its benefits to society and its
role in individual flourishing. This may suggest that we should make some
accommodations for educational uses in copyright law, such that educators
do not need to seek permission and/or pay licence fees for every use of
protected material. On the other hand, educational uses are often literal and
non-transformative. It is common that materials created with scholarly and
teaching purposes in mind are copied in exact form (often by photocopying
or digitisation) and used for the same purpose as that contemplated by their
∗Reader in Law, King’s College London. My thanks to Lionel Bently and Robert Burrell for their
feedback in relation to the ideas in this article; to the anonymous reviewer for the extremely useful
review; and to James Parish and our students in the King’s module Advanced Topics in Intellectual
Property Law, to whom I first presented my thoughts on the latest installment in the Georgia State
litigation.
1 The photocopying revolution of the 20th century was a particular catalyst for debates about
copyright’s treatment of education, because of the use of reprographic technologies to provide
access to learning materials. These debates have continued as digital platforms replace physical
course packs and handouts. In addition, any consideration of copyright and education must
consider other uses of protected materials, for instance the playing and viewing of works in the
classroom. For an overview see: L. Wiseman, ‘Educational ownership and use: an opportunity
to rethink copyright’ (1998) 9 Journal of Law and Information Science 110; S. Picciotto, ‘Copyright
licensing: the case of higher education photocopying in the United Kingdom’ (2002) 24 EIPR
438; U. Suthersanen, ‘Copyright and Educational Policies: A Stakeholder Analysis’ (2003) 23
OJLS 585.
C2019 The Author.The Moder n Law Review C2019 The Modern Law Review Limited. (2019) 82(3) MLR 508–524
Published by JohnWiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 101 Station Landing, Medford, MA 02155, USA
Emily Hudson
author.2In 1977, the Whitford Committee questioned whether educational
uses should be permitted on an unremunerated basis, observing that ‘[n]obody
suggests that the makers of note books, compasses and rulers should supply
these products to educational establishments free of charge.’3This reflects a
complaint made not infrequently by authors and publishers about public interest
arguments being used to justify their copyright works being used for free, whilst
the ability of other individuals to monetise their labour is not questioned.
This case note discusses the long-standing Georgia State litigation in the
United States, the latest instalment of which was the October 2018 decision
of the Court of Appeals for the Eleventh Circuit.4The central issue in Georgia
State is whether the US doctrine of fair use applies to book extracts posted on
the university’s electronic reserves and virtual learning environment (VLE). But
its themes are relevant internationally given similar cases in other jurisdictions;5
the existence elsewhere of exceptions that cover education, including in the
and the liberalisation of exceptions, including in the Proposed Directive on
Copyright in the Digital Single Market.7This case note argues that Georgia
State illustrates the challenges in deciding whether educational uses should be
subject to copyright’s default property rule approach (ie, the copyright holder
chooses whether to grant a licence and, if so, the price) or come within a
2 Not all educational uses can be characterised in this way. First, many works used in universities
and schools were not produced with education directly in mind, as exemplified by the material
that might feature in courses on art, literature, history and media studies. Secondly, it has been
argued that many teaching uses are ‘transformative’ due to the ways that source materials are
presented to students, and the new messages and meanings that can be conveyed: see B. Butler,
‘Transformative Teaching and Educational Fair Use After Georgia State’ (2015) 48 Connecticut
Law Review 473.
3 Committee to Consider the Law on Copyright and Designs, Report on Copyright and Designs Law
Cmnd 6732 (1977) at [268].
4Cambridge University Press vAlbert 906 F 3d 1290 (11th circuit, 2018) (GS Court of Appeals II).
5 Including The Chancellor, Masters & Scholars of the University of Oxford vRameshwari Photocopy
Services CS(OS)-2439/2012 (16 September 2016, Delhi High Court), appealed as RFA(OS)-
81/2016 (9 December 2016, Delhi High Court); The Canadian Copyright Licensing Agency (“Access
Copyright”) vYork University 2017 FC 669. Inthe UK, the blanket licence for universities offered
by Copyright Licensing Agency was considered by the Copyright Tribunal in Universities UK Ltd
vCopyright Licensing Agency Ltd [2002] EMLR 35.
6 CDPA, ss 32-36A. For an overview of these provisions, see L. Bently, B. Sherman, D. Gangjee
and P. Johnson, Intellectual Property Law (Oxford: OUP, 5th ed, 2018) 263-266.
7 For example, Australian Law Reform Commission, Copyright in the Digital Economy: Final
Report ALRC Report 122 (November 2013) (making the primary recommendation of fair
use, and a secondary submission of new fair dealing purposes, including for education); De-
partment of Communications and the Arts, Copyright Modernisation Consultation 2018,
information at https://www.communications.gov.au/have-your-say/copyright-modernisation-
consultation (last accessed 13 November 2018) (including consideration of a new fair dealing
exception for education). In Europe, the Proposed Directive on Copyright in the Digital Sin-
gle Market COM (2016) 593 includes in Art 4 a mandatory exception allowing the digital
use of works ‘for the sole purpose of illustration for teaching, to the extent justified by the
non-commercial purpose to be achieved’, although according to Art 4(2), this exception can
be limited generally or for particular uses or types of work ‘to the extent that suitable licences
. .. are easily available in the market’. The Proposed text also permits Member States make any
exception subject to the payment of ‘fair compensation’ to rightsholders: Art 4(4).
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2019) 82(3) MLR 508–524 509
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