Running head: FAIR USE AND COPYRIGHT ISSUES IN HIGHER EDUCATION 1

Fair use and copyright issues in higher education

Didar Zhakanbayev

Pennsylvania State University

Fair use and copyright issues in higher education

The current technological transformations have brought education to a higher notch.

Students from various parts of the globe can pursue their long distance learning from homes

through the internet. The lecturers can teach, and pass all the relevant information required for
FAIR USE AND COPYRIGHT ISSUES IN HIGHER EDUCATION 2

the learning process via the portal provided (Tiene & Ingram, 2009). A number of universities

around the world are currently adopting this concept hence making its use to be increasingly

common. Nonetheless, good things come with almost an equal measure of shortcomings

(Muilenburg & Berge, 2011). Despite the great success witnessed in the online learning, a

number of shortcomings have also been brought about by the system hence having a greater

impact on the nature and quality of education provided. The shortcomings include copyright,

defamation, ownership, and harassments (Harper, 2010). Given the context of the study, this

analysis will dwell on copyrights and infringements.

Most often than not, lecturers and students find, themselves producing, distributing,

displaying or making derivative works from resources that are protected by copyright. This not

only happens in the online learning but also in the classroom face-to-face learning. This problem

is exceedingly common in many colleges in not only the United States but also globally (Harper,

2010). Most faculties have always believed that all the work done in the classroom is for fair use

as long as it is meant for educational purposes. This perception has further been extended to the

online paradigm, which is even more open to the public eye. Despite the introduction of the fair

use policy, many institutions have consistently breached the copyrights law, hence making them

highly vulnerable to legal actions prescribed in the law (Chiang & Assane, 2002).

The chapter 5 of the Copyright law states that any person found in violation of the

exclusive rights given to the copyright owner in accordance with the provisions of sec 106-122,

or is found importing copies into the US contrary to Sec 602 will be considered an infringer of

the owners rights (Muilenburg & Berge, 2011). The term anyone as used in the subsection

refers to any officer, state, student, institution, or employee among others. Subsection (d) of the
FAIR USE AND COPYRIGHT ISSUES IN HIGHER EDUCATION 3

Act further asserts that any secondary submission via internet or cable system is considered

infringement based on section 111(c) (3) (Wu, Chou, Ke, & Wang, 2010).

Copyright infringement primarily consists of violation of the owner's exclusive rights.

Violations in most cases demean the authors work, and make them readily available to all people.

The authors and publishers, therefore, end up making little sales from their publications. In the

event that court establishes the existence of infringement, the complainant is always subject to

compensation. Infringement can be classified into two categories, namely contributory

infringement and vicarious infringement (Wu, Chou, Ke, & Wang, 2010). Contributory

infringement occurs when an institution is aware or has reasons to know that an induce a person

to copyright infringement amounts to infringement. This implies that if an institution places

students in a position that is likely to make them engage infringement, then the institution has

engaged in contributory infringement. One of the most common instances is file sharing which is

highly rampant in campuses globally. Institutions have permitted students to share files over the

internet, a factor that highly amounts to infringement of the copyright. Relatively, contributory

infringement may occur in cases where an institution decides to maintain a database of copied

materials and giving students permission to access such materials without the permission of the

original owners.

Another category of the breach is vicarious infringement. Under this type of

infringement, the institution must be in possession of supervisory ability of the users, and a direct

financial interest in the activity (Cohen, 2012). A cause of disagreement often arises when the

courts attempt whether the institutions have financial interest the infringements.

The copyrights Act clearly stipulates the acts that are actionable by law, and the

prescribed acts suites perfectly into the context of both online and face-to-face classroom
FAIR USE AND COPYRIGHT ISSUES IN HIGHER EDUCATION 4

learning. Despite the good performance exhibited by universities and other higher education

institutions, there is every reason to believe that most of these institutions do not have or abide

by the fair use guidelines. The trend might have gone unnoticed within the classroom paradigm.

However, the online platform is accessible by many people, and therefore, most institutions

would be victims of such infringements. This paper seeks to analyze the issue mentioned above

in regards to cases handled in this context, the impact it has on higher education, and

conclusively make recommendations in regards to interventions for that issue.

Review of similar legal cases

Copyright infringement commenced way back before the emergence of the internet

technology. However, the emergence of technology brought the levels a bit higher hence

increasing the instances within the social setting. Various incidents of copyright infringement

have been brought to book and rulings have been made in accordance with the law. According to

the infringement act, a teacher or a student engaging in the actual communication or copying of

the copyrighted work without the owners permission is liable for infringement (Cohen, 2012).

A similar case applies to schools or institutions that permit infringement within their

environs. The University of New South Wales Vs. Moorhouse and Angus & Robertson case

constitutes the first instance to be viewed in this analysis. In the case, the University of New

South Wales was accused of reproducing or approving the reproduction of the publishers

copyrighted work without their authority. The court found the existence of copyright breach;

nonetheless, the university was not seen liable, as it did not directly authorize the photocopying

of the book or parts of the book. The court ruled that the university was liable since it did not

issue any notice prohibiting the production of copies without the owners consent. The university

appealed this decision, prompting the complainant to counter appeal the same; insisting that the
FAIR USE AND COPYRIGHT ISSUES IN HIGHER EDUCATION 5

university was liable since it did not issue any notice that the books were not supposed to be

photocopied by the students. Through the cross-appeals, a bone of contention arose in regards to

what amounts to infringement authorization. The court considered that the librarian that

permitted the printing was liable for infringement, and therefore in a unanimous ruling, the court

considered the university liable for authorizing the infringement (Coombs, 2013).

The Georgia state University is another institution that has come under considerable

attacks over the issues of copyright infringements. Many publishers and authors have filed their

cases regarding the universitys inability to control instances of copyright infringement within its

watch. One of the cases that were keenly observed by academics worldwide was that in

Cambridge University Press, Oxford University Press and Sage Publications vs. Georgia State

University. In this particular case, the Georgia State University is accused of allowing the

faculty members to scan books and then post the materials in institutions e-reserves. This move

was aimed at enabling students access assigned readings in cases where the books to be used

were limited editions. The e-reserve, therefore, presented them with an easier option of having

the work done in a quicker manner (Rodriguez, Greer, & Shipman, 2014). The three complaints

observed that the case in Georgia State University is a mere representation of copyright

infringement in the institutions of higher learning across the United States.

The court in its 2012 ruling endorsed the institutions practices and ruled in its favor on

the 94 out of the 99 instances presented regarding the alleged copyright violation. The court

observed that as long as the institution did not produce too much of the copyrighted articles and

books, in which case were placed under 10 percent, it would be considered to be engaging in the

fair use of the copyrighted materials. The publishers were dissatisfied with the court decision and

made an appeal in court, citing narrow opinion in the case, and that the court had relied on up the
FAIR USE AND COPYRIGHT ISSUES IN HIGHER EDUCATION 6

incorrect use of the fair use analysis. The court of appeal in its ruling sided with the publishers

and considered their criticism. The court of appeal noted that the scanning of such materials

brought about major harms in the marketability of the publishers work. Georgia state university

was found responsible for copyright infringement and had to compensate the owners for the

alleged losses incurred. These instances tend to not only ruined the reputation of the institutions

but also make them incur financial losses in compensation.

In spite of the stringent court ruling against copyright infringement, more institutions of

higher learning are incessantly practicing this act. September 12, 2012, marked yet another

instance of copyright infringement. In this particular case, The Australian Society of Authors,

The Authors Guild, the Union Des Ecrivaines ET des Ecrivains, alongside other eight authors

filed a copyright lawsuit against five US universities. This has been regarded as a grand

copyright infringement since it was a conspiracy by five key universities. The institutions

included the University of California, University of Michigan, Indiana University, the University

of Wisconsin, Cornell University, and the Hathi Trust. The Hathi Trust in this case refers to a

partnership that was formed by the five universities with the joint mission of collecting,

categorizing, communicating and then sharing human knowledge records. The Hathi Trust

established a digital library archive in which it stored millions of copyrighted materials and

books, which were scanned by the universities. They further collected other copies that had been

scanned by Google and Microsoft and included in the resources (Rodriguez, Greer, & Shipman,

2014). The digital library acted as an information center where students could access various

information and use in their research.

The group of authors accused Microsoft, Google, and Hathi Trust of copying their books

into digital form without their due consent. The universities have been accused of infringement
FAIR USE AND COPYRIGHT ISSUES IN HIGHER EDUCATION 7

of copyrighted works and the dissemination of Orphaned works whose owners could not be

established. The universities on the other hand have come in their defense and cited Section 107

of the copyright act, which refers to the fair use doctrine. A critical review of the fair use doctrine

exclude the above acts committed by the five universities. There were no indication of the

information showing that they were subject to copyright, and secondly the amount of information

copied and scanned exceeded the limits set in the fair use doctrine (Rong, 2013).

In the face of such defense, the University of Michigan suspended the digitalization of

the books until the procedure had been clearly determined to ensure that the works are used with

the permission of the owners. This Lawsuit is similar to that which occurred between the

Association of American Publishers, Authors Guild, other writers, and publishers vs. Google. In

this claim, the group of publishers accused Google of scanning millions of their books and

placing them on the Google Books site. The case is still ongoing, and Google has been advised to

establish a system where publishers and authors can grant permission before any of their works

is published. Moreover, Googles attempt to make a monetary payment in settling the issue has

been futile (Adler, Butler, Band, & Cox, 2015). The institutions, therefore, did experience not

only a drop in their reputation, but also a considerable financial loss in court injunction as well as

compensation to the complainants.

Other institutions like the Clark County School have equally fallen prey to copyright

infringement. this occurred when the institution purchased a book in 2009, then scanned its pages

and posted online so that anyone could download. District officials have since denied allegations

of posting the book online and indicated that they are not aware of the individual that could have

made such a posting.

FAIR USE AND COPYRIGHT ISSUES IN HIGHER EDUCATION 8

The above cases depict the widespread of copyright infringement in institutions. The

above instances are just but a few cases that have been brought before the law for trials. Despite

the hefty penalties and image defamation that the involved colleges have experienced, most of

them are still not willing to give up the practice. The fair use doctrine has been used as the key

defense in cases where institutions have been caught in the act. These findings are deplorable and

affect both the Teachers and Students in a similar manner and magnitude. The law states the

circumstances under which the copyrighted materials can be used; these have however been

ignored by the institutions hence leading to gross copyright infringement in the institutions.

Considering the magnitude of the infringements, if no action is taken, then the authors would

completely loose market for their publications. The evidence presented above is overwhelming

and proves beyond any reasonable doubt the existence of copyright infringement in institutions

of higher learning. Below are some of the impacts that the copyright infringement can have on

the institutions.

Impact of copyright infringement on higher education

The above analysis presents instances of constant wrangles between higher learning

institutions, authors, and publishers. While the institutions believe that they possess rights to fair

use of the copyrighted materials, the publishers are of the contrary opinion. The law provides

various actions that can be taken towards people involved in copyrights infringement. These

actions are subdivided with each allocated given levels of penalties.

Chapter 5 section 2 of the of the copyright act states the remedies available for breach,

these are the actions that the court can take against the accused in a bid to find justice. One of the

remedies is injunctions. This involves restricting the concerned parties from using the

copyrighted materials. Injunctions to an institution can easily jeopardize the learning process,
FAIR USE AND COPYRIGHT ISSUES IN HIGHER EDUCATION 9

especially in cases where they have established a database for the copyrighted books. The

injunction may include stopping the institution from having access to the learning materials

hence affecting their performance. Injunctions limits the access to such documents hence can

result in a large impact on the student learning and quality of resources presented to them by the

lecturers (Adler, Butler, Band, & Cox, 2015). Limitation of access to certain books may also

affect the quality of research that students perform. In general, an injunction can have a severe

impact on the learning process and students would not be given the desired levels of quality

learning.

Another action that can severely affect an institution is impounding and disposition of the

infringed documents. As postulated in the case between Australian Society of Authors, the

authors guild, the Union Des Ecrivaines et des Ecrivains Quebecois , and other eight authors Vs

Hath Trust; institutions can develop a database of relevant books used within the institution. The

database can act as a library where the students can access the books and use them for

educational purpose. In the event that a court establishes that, such an act amounts to copyright

infringement, an impounding order and disposition may be issued (Rong, 2013). This means

termination of the database. Students and other parties used to such a culture may find learning

to be quite difficult since the resources would not be easily available. The copies of books

scanned or copied would all be confiscated leaving the institution with a few resources to use.

Not only would this affect the students and the lecturers that use the information, but also would

be costly to the organization. The cost of setting up a database with that amount of information is

high; hence, a disposition order from the court would make them incur massive losses.

In most cases, parties found liable for copyright infringement are always ordered to pay

for damages, and in case there is the element that the defendant was using the materials for
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financial gains, profits would be added to the charges. The copyright owner is therefore entitled

to gain recovery of any damage suffered due to the infringement. In the recovery of the actual

damages and profits, the clause (2) provides that the infringer or infringers pay not less than

$750 and not more than $30,000. In other instances, the copyright owner may carry the burden of

proving that the infringement occurred, the statutory damages in such instances should not be

more than 150,000. The court is expected to remit statutory damage, a burden that is carried by

the infringer (Rodriguez, Greer, & Shipman, 2014). A student, lecturer or an institution bearing

the burden of compensating the copyright owners may experience a little problem trying to settle

the damages.

Compensation for damages as stipulated above may lead to a gross loss of individual

students, lectures, or the institution. It is, therefore, imperative that the universities develop a

system that can help in ensuring that the materials are used fairly and in accordance with the

Copyrights law to prevent such interferences.

Recommendations for solutions

Given the above analysis, it is evident that nearly every institution of higher learning has

or is likely to engage in copyright infringement practices. Students are constantly photocopying,

printing, and scanning copyrighted books and articles then sharing them online with others. The

same occurs with lecturers who use copyrighted materials in teaching then posting such materials

online for students to use. Knowing or unknowing, copyright is illegal and has a major impact on

the authors and publishers. It demeans their work, making them cheap and easily accessible

(Coombs, 2013).

The analysis has equally highlighted the impacts that infringement can have on

institutions, students, and the lecturers. As observed in the case study analysis and presentations,
FAIR USE AND COPYRIGHT ISSUES IN HIGHER EDUCATION 11

the acts of infringement puts these parties at a risk of losing millions of dollars in compensation

for damages incurred by the infringed parties (Rodriguez, Greer, & Shipman, 2014).

Most institutions as depicted in the case study cited fair use of the materials as remedy

in trial. In defense, various institutions indicated that some of the books were expensive and

could not be easily purchased by either the students or the institution. The option of

photocopying, printing, or scanning certain pages then posting for students to use online was the

only valid option. A critical analysis of this scenario infers that the act does not amount to fair

use; rather it extort market from the authors by making their publications available online for

free (Coombs, 2013). This amounts to copyright infringement. There are therefore various

recommendations that can help students, lecturers, and institutions to use the resources

responsibly.

One of the major recommendations that institutions can implement is the adoption of the

fair use policy. The fair use policy was brought about by the courts to allow students use the

resources for their learning. The fair use policy ensures that the materials are not used for

commercial purposes but purely for non-profit educational purpose. The fair use policy takes into

account the nature of work that has been infringed. The policy has set various limits for works

that can be infringed. Thirdly, the fair use considers the substantiality and the amount of the work

portion that has been used relative to the entire publications. Finally, the fair use considers the

impacts that the use of the infringed product has on the potential value of the publication. The

fair use doctrine thus sets the limits through which the materials can be used (Rodriguez, Greer,

& Shipman, 2014). Institutions must ensure that they abide by the defined boundaries to prevent

encounters with the law.

FAIR USE AND COPYRIGHT ISSUES IN HIGHER EDUCATION 12

Secondly, an institution can adopt the classroom copying guidelines. The guidelines set

the least standards that institutions can engage in the fair use practice pursuant to section 107 of

the HR 2223. According to the guideline, a teacher may make a single copy for teaching

purposes, scholarly research, or in their preparation for teaching. The single copy may include a

book chapter, an article or newspaper, a short story, and a graph or diagram among others. The

guidelines further stipulates that in case the teacher has to produce multiple copies for students,

and then the copies should never exceed one per student. Besides, the copying has to meet the

brevity and the spontaneity test, must have a copyright notice, and must be subject to the

cumulative effect test (Chiang & Assane, 2002).

The institutions can also adopt the teach act to help in discouraging transmission of

copyrighted materials within the online domain. Under this approach, the art performance or

work display during teaching ought to be done within the classroom environment. In case of

online learning, the teacher needs to gain full rights to use the materials before giving them to the

students for use.

Finally, the institution can decide to purchase a copyright. Purchase of copyrights

primarily involves negotiating with the copyright owner on the terms for using their product.

The process of copyright purchase can be quite expensive, especially if the university wishes to

acquire many books. This option can be used in cases where copies of a required book are

expensive or are limited in number. An institution of higher learning can therefore use this option

to obtain the books.

References

Adler, P., Butler, B., Band, J., & Cox, K. (2015). RLI 285: Research Library Issues: A Report

from ARL, CNI, and SPARC 2015--Special Issue on Copyright.

FAIR USE AND COPYRIGHT ISSUES IN HIGHER EDUCATION 13

Chiang, E., & Assane, D. (2002). Copyright infringement among college students. Applied

Economics, 34(2), 157-166.

Cohen, J. E. (Ed.). (2002). Copyright in a global information economy. Aspen Publishers.

Coombs, L. (2013). Copyright Infringement & its Impact on Society (Doctoral dissertation).

Harper, G. (2000). Developing a comprehensive copyright policy to facilitate online learning. JC

& UL, 27, 5.

Muilenburg, L., & Berge, Z. L. (2001). Barriers to distance education: A factoranalytic study.

American Journal of Distance Education, 15(2), 7-22.

Rodriguez, J. E., Greer, K., & Shipman, B. (2014). Copyright and you: Copyright instruction for

college students in the digital age. The Journal of Academic Librarianship, 40(5), 486-

491.

Rong, D. (2013). Applicable Rules in Copyright Lawsuits Under the Network Environment.

Chongqing Social Sciences, 4, 008.

Tiene, D., & Ingram, A. (2009). Exploring Current Issues in Educational Technology with Free

PowerWeb. McGraw-Hill, Inc..

Wu, H. C., Chou, C., Ke, H. R., & Wang, M. H. (2010). College students' misunderstandings

about copyright laws for digital library resources. The electronic library, 28(2), 197-209.
 FAIR USE AND COPYRIGHT ISSUES IN HIGHER EDUCATION
Didar Zhakanbayev Rubric for Assessing Written Assignments *
NEEDS SUBSTANTIAL
IMPROVEMENT
B-/B
No thesis/argument
Thesis/argument is
Thesis/Argument unclear or overly broad
Supports Thesis with Does not provide
Evidence supporting evidence
Provides evidence only
in summary form, not
connected to argument
Addresses Does not offer
Counterarguments or alternative views
Alternatives Offers only strawman
version of alternative
Writing and editing Errors of conventions
Lacks clarity in use,
Conventions: definition of terms
requested format, Lacks clear logic
length, grammar, connecting sections
spelling, word use,
etc.
Clarity
MEETS STANDARD
A-/B+
Thesis/argument is
clearly stated and
connected to everything
discussed in the paper
The argument develops
it is not simply a list of
points, but rather becomes
more complex as it goes.
Offers evidence, linked
to in-course readings or
outside sources, to support
the argument
Offers alternatives or
counterarguments on the
topic
No errors of
conventions
Clear organization
Clear logic connecting
each section
Clear definitions of
terms
14
EXCEEDS STANDARD
A
Thesis/argument has all
of the preceding virtues,
and pushes or advances
ideas learned in class
Integrates evidence
considers multiple ideas
or joins them in a new
way to support
argument.
Addresses alternatives
or counterarguments and
offers strongest possible
rebuttal
Exceptional clarity of
writing
Complicated in ideas,
but easy to read and
understand
 FAIR USE AND COPYRIGHT ISSUES IN HIGHER EDUCATION 15

Exceeds Standard includes all of the demonstrated competencies in Meets Standard plus those in the
Exceeds Standard column

*This rubric draws on rubrics developed by Richard Elmore and Jal Mehta for classes taught at the Harvard
Graduate School of Education. It cuts across all the options for your written assignments.

Note: Any evidence of plagiarisme.g., use of others written work without attribution (one example includes
paraphrasing without citing), and failure to cite sources for direct quoteswill result in failing grade and referral
for disciplinary action. Please read the Student Handbook for guidance on plagiarism.