In my first post on this topic, I discussed one lesson learned from the recent decision in the Georgia State University copyright trial, in which a judge deemed GSU liable for five of 94 alleged instances of copyright infringement. My focus in that post spotlighted the role of the university in educating its faculty and graduate students about polices of Fair Use and best practices. Today, I’d like to address individual educators and our personal stakes in this decision.
Lesson 2: Teachers need to be aware that they may be personally liable for their use of copyrighted materials through digital interfaces.
There are a host of factors to consider when reading about this case. First, the plaintiff publishers named the following figures as defendants: the university President, Provost, Dean of Libraries, and the Board of Regents. Individual teachers, though cited by name in the decision and asked to testify at trial about their pedagogical use of publisher-owned materials, were not in this instance directly sued by the publishers. This seems an important item for further discussion. When I asked an attorney whether I may myself be personally liable in the future, I was told by said attorney that I was not named in this case. That is the sole comfort I received as I was seemingly legally bound to participate in this process. Certainly one presumes a member of the Board of Regents may have deeper pockets than an early-career academic, but the fact that the elite of our university were named in this case does not mean that they are exclusively vulnerable to this type of claim. The lessons of the individuals sued over Napster remain significant when considering copyright protection.
Every time any attorney addressed me in an email or at the start of a meeting, they called me professor, and every single time I reminded them of my status as a graduate student. I don’t think the lawyers necessarily understood the full implications of my insistence on this distinction, but I felt uniquely vulnerable as a graduate student. While other non-tenured faculty called to testify bore the burden of different professional stakes than tenured faculty members, my status as a graduate student identifies unique risks for a young teacher. In addition to my relative inexperience compared to other GSU teachers asked to testify about our classroom use of E-Reserves, I also question my relationship with the university. Am I an employee with the same protections as faculty? Would the university defend my role in the classroom on an equal level? Are there deeper dangers in my testimony as someone building a CV and entering the job market? More broadly, to what extent are graduate student teachers being prepared for education in the digital age? Should universities and departments be even more active in mentoring and overseeing graduate student teaching, including advice about the use of digital course sites (from E-Reserves to uLearn to a personal website) and instruction about the requirements for a claim of Fair Use? I voluntarily attended sessions offered through our Center for Teaching and Learning that allowed me to chat with a University attorney and to learn more about copyright issues. But this is not necessarily typical behavior for extremely busy graduate student teachers. Given the current institutional context in which we live, departments and universities should require more education about copyright law and fair use exemptions for both undergraduates and graduates.
Lesson 3: This case highlights the limits of the symbiotic relationship between academic scholar and the academic publisher.
My use of ‘symbiotic’ implies that we each offer the other something, sharing a mutual dependency. Publishers need content, and scholars need an outlet for their work. Yet is symbiotic too generous a term for a system in which our work is commodified with little or no remuneration for our individual effort? Also consider this next example which is not hyperbole or hysteria—one of the professors called to testify in this case was asked about her classroom use of an essay she herself wrote. This professor did not hold the rights to her work, though, so the publisher alleged that her provision of that essay for her students through the library’s E-Reserve was a violation of the publisher’s ownership of the content she produced.
At a minimum, I’d like this post to remind any readers entering into a contract with an academic publisher to consider the details of the contract. Do you maintain any ownership rights to your work? Has the contract accounted for digital reproduction and classroom use? Does the publisher have an official policy on what qualifies as Fair Use? Sage, Cambridge and Oxford were the plaintiffs in the GSU case, but academics should demand more equitable terms with any publisher with which we partner.
 Among the most interesting details is that the publishers’ case was funded by the Copyright Clearance Center, which has a financial stake in the hard copy course packs being replaced by digital scans and online PDF documents.
 Media industry scholars like John Caldwell have noted the parallels between these two institutions/systems, and here is an instance where we can see that once more.
 Steven Shaviro recently published a series of blog posts (here and here) about his own efforts to retain some rights to an essay he was planning to contribute to an anthology published by Oxford. When the publishers refused even to allow him to post the work on his personal website, he declined the invitation to participate in the anthology.