It’s been over two years since Cambridge University Press, Oxford University Press, and Sage Publications, Inc. sued Georgia State University claiming works posted to its e-reserves system, online course system, and course-related web sites infringed copyrights held by each.  Since then, the case has progressed through various motions and procedural maneuverings from both sides.  Given the nature of legal proceedings, short of a settlement, the ultimate outcome remains in the distant future.  Nevertheless, some recent filings provide some insight in to what is at stake.

                In early August (2010), Judge Orinda Evans ordered each side to start to get specific.  That is, the publishers were ordered to identify the allegedly infringing works for three terms:  the 2009 Maymester, the 2009 summer semester, and the 2009 fall semester.  The judge’s order directed the publishers to compile the following information.

“This list of courses must be grouped by semester and must include:

1.       The title of the course;

2.       The instructor teaching that course during that semester;

3.       The title of the work that was allegedly infringed when it was electronically distributed for use in that course;

4.       The owner of the copyright of that work;

5.       A brief description of that work including its total number of pages and chapters; and

6.       The number of pages and chapters of that work that were electronically distributed for use in that course during that semester.”

Georgia State University was given orders too.  The university was ordered to respond to the information submitted by the publishers and, in addition, to identify all books and course packs students were required to purchase for each course on the list.  Finally, the court ordered GSU to report the number of courses taught during each of the three terms in question.   One can only imagine the bills each side received from the hours of lawyers laboring at their hourly rates to compile it all.  What is more interesting, however, is what the court documents reveal about the dollars at stake for publishers and copyright clearance companies such as the Copyright Clearance Center (whose fee structure was used to calculate permissions fees).

                Looking at the data for the 2009 fall semester provides a snap shot of the magnitude of the revenue the publishers believe they are losing by chapters of their books being distributed via e-reserves without any permissions royalties being paid by GSU.  Based on GSU’s response to the list provided by the publishers, GSU acknowledged that for that term, 31 courses taught at GSU distributed a total of 57 chapters from books identified by the publishers.  Interestingly, in the vast majority of the cases (45 out of 57) only 1 chapter from a given book was distributed via e-reserves.  That represents over 95% of the cases.  In 2 instances, 1 chapter plus part of a second chapter were distributed.    In the remaining cases, there were 6 instances of 2 chapters being distributed, 2 instances of 3 chapters being distributed, 1 instance of 4 chapters being distributed, and 1 instance of 8 chapters being distributed.   Even in the case of 8 chapters being distributed, this represented 186 pages out of a 1,126 page volume.  On the whole, the vast majority of the instances did not involve copying massive portions of individual books.  Indeed, it is highly likely that many faculty members believe that taking a single chapter from a book is comfortably within the parameters of fair use in most situations.  Clearly, the publishers don’t see it that way.  It is easy to see why the publishers view it differently when examined from the perspective of the potential lost revenues if, in fact, permission fees are legally required.

                Looking at the fall 2009 data provided by GSU in its court filings, the class sizes reported for the period ranged from 1 – 114 students with most of the courses having fewer than 50 students enrolled.  Based on the actual enrollment figures for each course and the permissions fees that the Copyright Clearance Center charges for the chapters in question (which includes a $3 service charge for each permission request), GSU’s permissions bill for that semester would have been $7,153.75.  Assuming fall 2009 represents a typical semester, this translates into $14,307.50 for the academic year.  This excludes GSU’s summer and Maymester sessions, and further, does not include permissions for works posted to online classes or course web sites.  Clearly, with complete data, the permissions bill would increase significantly.  And that is just at GSU.

                While that may not sound like an enormous expenditure for a given institution, the revenues at stake quickly become significant when put in context.  According to data from the U.S. Department of Education’s Institute of Education Sciences, in 2008 – 2009, there were 4,409 colleges, universities and community colleges in the U.S.  Of these, 2,719 were 4-year colleges and universities and 1,690 were 2-year institutions.  It is reasonable to assume that many of them utilize some combination of e-reserves, online classes, and course web sites in a manner similar to GSU.  If only 1,000 of those institutions do the kind of thing GSU does at about the same volume of usage as GSU, that means lost permissions revenue of $14,307,500.00 and that represents lost revenues to only 3 publishers.  By the numbers, the stakes are clear.  By the numbers, the stakes are high.  The outcome of this case will significantly impact the business model of the academic publishing industry for decades to come.