On behalf of three national library associations, EFF today urged a federal appeals court for the second time to protect librarians’ and students’ rights to make fair use of excerpts from academic books and research.

Nearly a decade ago, three of the largest academic publishers in the world— backed by the Association of American Publishers (AAP) trade group— sued Georgia State University (GSU) for copyright infringement, insisting that GSU owed licensing fees for the use of excerpts of academic works in its electronic reserve system. Such systems are commonly used to help students save money; rather than forcing students to buy a whole book when they only need a short excerpt from it, professors will place the excerpts “on reserve” for students to access. GSU argued that posting excerpts in the e-reserve systems was a “fair use” of the material, thus not subject to licensing fees. GSU also changed its e-reserve policy to ensure its practices were consistent with a set of fair use best practices that were developed pursuant to a broad consensus among libraries and other stakeholders. The practices are widely used, and were even praised by the AAP itself. 

But that was not enough to satisfy the publishers. Rather than declare victory, they’ve doggedly pursued their claims. It seems the publishers will not be content until universities and libraries agree to further decimate their budgets. As we explain in our brief, that outcome would undermine the fundamental purposes of copyright, not to mention both the public interest, and the interests of the authors of the works in question. The excerpts are from academic works whose authors are not looking to get rich on licensing fees. They are motivated, instead, by a desire to contribute to the greater store of knowledge, and by the benefits accrued to their professional reputation when other scholars read, and cite, their published work. They care about recognition, not royalties.

Moreover, the fair use analysis is supposed to consider whether the practice at issue will cause material harm to an actual or potential market. But there’s no real market for digital excerpts that the libraries’ practices could harm. Indeed, as GSU explained in their brief, “[m]any professors testified that they would not have used any excerpt if students were required to pay a licensing fee.” And even if such a market existed, most libraries likely couldn’t afford to be part of it. In light of rising costs and shrinking resources, “academic libraries simply do not have the budget to participate in any “new” licensing market" without diverting funds away from other areas—like those used to add new works to their collections.

Copyright is supposed to help foster the creation of new works. Requiring university libraries to devote even more of their budgets to licensing fees will have the opposite effect. We hope the court agrees.