We heard last week from two Guild members who had discovered that their books were copied and uploaded by university professors for distribution to their classes without permission, in one case the entire book and the other several chapters. This is a clear violation of copyright law—it is outright theft—and it happens far more often than it should. Virtually all universities have copyright policies that instruct faculty and staff to comply with copyright law. The problem is that academic institutions do not always do such a good job of educating faculty about those policies or enforcing them, and faculty often find it easier to distribute course materials online under the rubric of fair use than to deal with the process of seeking permission.
In one of the recent instances, Monique Truong, novelist and Guild council member, discovered that an entire copy of one of her novels had been uploaded to a class site for students to download for free without permission. Truong’s agent reached out to the adjunct professor who had uploaded the book, and nothing happened. The agent then got in touch with the head of the department, and after some days, the book was finally taken down—but only after most students had likely already downloaded their free copies of the book. And even though Truong’s book was taken down, the class’s site still had entire copies of other books on it. So we at the Authors Guild wrote to the chair of the adjunct’s department and to the head of the university library requesting that they do a better job of communicating and enforcing the university’s copyright policies to ensure that faculty members do not engage in infringing practices.
We received an apologetic response from the department chair, who agreed to do a better job of educating the staff and faculty. She said that the professor had removed all the infringing material from the website and instructed students to delete the downloaded material from their computers and other devices. As an author herself, she said, she understands the damage done to authors when work is pirated and not purchased by readers. The department chair assured us further that all new faculty in the department will be made aware of the importance and necessity of complying with copyright law.
We were pleased with her response. But we also want to use this as an opportunity to remind academic institutions that they must take responsibility for making sure faculty know the rules and seek assistance in obtaining permissions where necessary or in making fair use determinations.
Publishers and agents will routinely grant permission to instructors who want to distribute longer excerpts from books for very modest fees; and academic institutions, whether through the library or legal staff, should be ready to help faculty with that process. Most universities today use online platforms such as class websites and instructional portals that allow the professors to post digital copies of readings for the students, the equivalent of the photocopied course packs from the old days, where excerpted works were licensed from copyright owners. Because of this transition from a centralized copy office, professors are now the ones providing students copies of the assigned readings. Short passages or excerpts can be justified as fair use, but fair use has limits, and using large portions of works is clearly not fair use.
Universities’ copyright policies usually explain how to determine whether permission is required and when fair use is applicable, but they do not give sufficient guidance. The descriptions of fair use often provide barely more than the statutory definition—a necessarily vague four-factor balancing test, more useful for courts making fine judgments than for professors who are unschooled in copyright law. Moreover, the policies often leave it to the individual faculty member’s discretion to determine whether the excerpts they want to use are fair use, when trained university library or legal staff should be making those determinations instead.
The problem is that fair use law is difficult to apply in practice (and, as we have argued in our legislative priorities, is an area in urgent need of further guidance). Other than the black-and-white cases at either extreme, making a fair use call often requires an understanding of the large body of case law that has developed around fair use over the decades. It is clear, for instance, that copying very short excerpts—such as a couple of paragraphs from a 200-page book, or a stanza from a multi-page poem, is fair use in an educational setting; on the other hand, posting extensive portions or the entirety of books for students to download is definitely not fair use. It is the Guild’s view that faculty should not be allowed to rely on fair use for any uses beyond short passages without the advice of university legal staff trained in copyright.
Last, we want to make sure that our members understand that copying extended passages from books without authorization, even for classroom use, is not permissible under copyright law and that if you find your books copied without permission, the Authors Guild is here to help you. In the words of Monique Truong:
The Authors Guild is a collective voice of authors. As such, it is in the better—if not the best—position to speak out on our behalf, when there are instances of infringement. Not only can the Guild address the specific instances of infringement and reach a speedy resolution, it can also initiate institutional improvements to existing policy.