Fair use is essential to information literacy because it empowers the student to use the works of others legally. Fair use in U.S. Copyright Law allows people to use the works of others without asking their permission under certain circumstances. But because fair use is a balancing test rather than bright line rules, it ultimately takes a court to decide its boundaries. The Georgia State University eReserves and the HathiTrust cases offer new decisions on applying fair use in higher education. The presenters will discuss an overview of the cases and provide approaches of how to integrate them into an information literacy framework

Burright, Mariann

Burtle, Laura

English

Georgia State University

Georgia State University
ScholarWorks @ Georgia State University
University Library Faculty Presentations Georgia State University Library
9-30-2016
Integrating Fair Use into Information Literacy:
Perspectives from the Georgia State University
eReserves and HathiTrust Copyright Infringement
Cases
Laura Burtle
Georgia State University, lburtle@gsu.edu
Mariann Burright
University of Georgia, mariann@uga.edu
Follow this and additional works at: https://scholarworks.gsu.edu/univ_lib_facpres
Part of the Library and Information Science Commons
This Presentation is brought to you for free and open access by the Georgia State University Library at ScholarWorks @ Georgia State University. It has
been accepted for inclusion in University Library Faculty Presentations by an authorized administrator of ScholarWorks @ Georgia State University.
For more information, please contact scholarworks@gsu.edu.
Recommended Citation
Burtle, Laura and Burright, Mariann, "Integrating Fair Use into Information Literacy: Perspectives from the Georgia State University
eReserves and HathiTrust Copyright Infringement Cases" (2016). University Library Faculty Presentations. 34.
https://scholarworks.gsu.edu/univ_lib_facpres/34
INTEGRATING FAIR USE INTO INFORMATION LITERACY
PERSPECTIVES FROM THE GEORGIA STATE UNIVERSITY ERESERVES AND HATHITRUST LAWSUITS
Laura Burtle, Georgia State University
Mariann Burright, University of 
Georgia
ACRL INFORMATION LITERACY FRAMEWORK: INFORMATION HAS 
VALUE
 Information possesses several dimensions of value, including as a 
commodity, as a means of education, as a means to influence, and as a 
means of negotiating and understanding the world. Legal and 
socioeconomic interests influence information production and 
dissemination.
FAIR USE
 Fair use is an exception to the exclusive rights of the copyright holder
 Fair use allows others to make use of a copyrighted work without 
permission or payment
 Fair use is a legal response to the need to balance the rights of the 
owner with the Constitutional purpose of copyright to promote the 
progress of science
FAIR USE STATUTE
 “[T]he fair use of a copyrighted work, including such use by reproduction in copies . . 
. for purposes such as criticism, comment, news reporting, teaching, . . . scholarship, or 
research, is not an infringement of copyright. In determining whether the use made of 
a work in any particular case is a fair use the factors to be considered shall include—
”
 The purpose and character of the use
 The nature of the copyrighted work
 the amount and substantiality of the portion used in relation to the copyrighted work as a whole
 the effect of the use upon the potential market for or value of the copyrighted work
CASE LAW
 Campbell v. Acuff-Rose Music – 1994 Supreme Court decision
 Transformative Use
 “[T]he enquiry focuses on whether the new work merely supersedes the objects 
of the original creation, or whether and to what extent it is "transformative," 
altering the original with new expression, meaning, or message. The more 
transformative the new work, the less will be the significance of other factors, like 
commercialism, that may weigh against a finding of fair use.”
GEORGIA STATE CASE 
(CAMBRIDGE UNIV. PRESS, ET AL. V. BECKER, ET AL.)
 Unlicensed electronic reserves – digitized portions of copyrighted books
 Publishers argue any use is infringing unless licensed
 GSU argues the uses are fair uses
 GSU does not argue that the uses are transformative
 Mirror-image copying
GSU LAWSUIT 
 U.S. District Court, Northern District Georgia in 2012 found infringing only 5 of 76 
alleged infringements
 11th Circuit Court of Appeals – Reversed and remanded, but did not find unlicensed 
use in this context to be infringing as a matter of law
 U.S. District Court - Northern District Georgia in March, 2016 found infringing 4 of 
48 alleged infringements
 Appeal filed September, 2016
HATHITRUST LAWSUIT
(AUTHORS GUILD, ET AL.  V.  HATHITRUST, ET AL.)
 Derives from the Google Books (Google Library) project
 Mass digitization of books in university libraries, without permission or payment
 Full books scanned, only metadata visible except for
 Works in the public domain
 Works made accessible to the visually impaired
 Authors Guild argues massive infringement
 HathiTrust argues TRANSFORMATIVE fair use
HATHITRUST LAWSUIT
 U.S. District Court, Southern District of New York in 2012 finds HathiTrust to be fair 
use – decision focuses on transformative nature of the project – “non-consumptive 
purposes”
 2nd Circuit Court of Appeals in 2014 affirms
 No appeal is filed
COMPARING THE CASES IN LIGHT OF THE INFORMATION HAS 
VALUE FRAME
 Both cases recognize the value of the information contained in the books
 The characterization of that value differs between the cases
COMPARING THE CASES IN LIGHT OF THE INFORMATION HAS 
VALUE FRAME
 GSU not based on a transformative work theory
 Decisions focus on the 4th factor - the effect of the use upon the potential market 
for or value of the copyrighted work, and the 3rd factor, the amount used
 The market is considered both the market for the original book and the licensed 
excerpts
 The book is a commodity – the issue is how to get as much value (profit) from the 
book as can 
COMPARING THE CASES IN LIGHT OF THE INFORMATION HAS 
VALUE FRAME
 HathiTrust is based on a transformativeness theory
 Focus on the purpose and character of the use being transformative
 The market becomes a lesser factor
 The book is a means of education – the issue is how to get as much 
value (learning) as can
COMPARING THE CASES IN LIGHT OF THE INFORMATION HAS 
VALUE FRAME
 Information possesses several dimensions of value, including as a 
commodity, as a means of education, as a means to influence, and as a 
means of negotiating and understanding the world. Legal and 
socioeconomic interests influence information production and 
dissemination.
FAIR USE BALANCING INFORMATION AS COMMODITY AND 
INFORMATION AS MEANS OF EDUCATION
 Copyright law recognizes that information (book) is a commodity and gives the 
owner exclusive rights, for a limited period, to profit from the work.
 With the Fair Use exception, copyright law recognizes that information (book) is a 
public good that promotes the progress of society, here through learning
LEARNERS WHO ARE DEVELOPING THEIR INFORMATION LITERATE 
ABILITIES
 Understand the purpose and distinguishing characteristics of copyright, fair use . . .
 respect the original ideas of others;
 value the skills, time, and effort needed to produce knowledge;
 see themselves as contributors to the information marketplace rather than only 
consumers of it
FAIR USE AND INFORMATION HAS VALUE
 Fair use is the bridge that leads from respecting the work of others to building upon 
that work
 The cases demonstrate how different facts lead to different balancing of the factors
 Understanding non-transformative uses (GSU) helps learners consider the value of 
the information to the owner, and the importance of not overusing others’ work
 Understanding transformative uses (HathiTrust) helps learners navigate critically 
approaching others’ works, consider alternative understanding, and advance 
knowledge in new ways.
WHAT DO YOU THINK?
 Questions? Comments? Discussion?


Integrating Fair Use into Information Literacy: Perspectives from the Georgia State University eReserves and HathiTrust Copyright Infringement Cases

ScholarWorks @ Georgia State University

Georgia State UniversityScholarWorks @ Georgia State UniversityUniversity Library Faculty Presentations Georgia State University Library9-30-2016Integrating Fair Use into Information Literacy:Perspectives from the Georgia State UniversityeReserves and HathiTrust Copyright InfringementCasesLaura BurtleGeorgia State University, lburtle@gsu.eduMariann BurrightUniversity of Georgia, mariann@uga.eduFollow this and additional works at: https://scholarworks.gsu.edu/univ_lib_facpresPart of the Library and Information Science CommonsThis Presentation is brought to you for free and open access by the Georgia State University Library at ScholarWorks @ Georgia State University. It hasbeen accepted for inclusion in University Library Faculty Presentations by an authorized administrator of ScholarWorks @ Georgia State University.For more information, please contact scholarworks@gsu.edu.Recommended CitationBurtle, Laura and Burright, Mariann, "Integrating Fair Use into Information Literacy: Perspectives from the Georgia State UniversityeReserves and HathiTrust Copyright Infringement Cases" (2016). University Library Faculty Presentations. 34.https://scholarworks.gsu.edu/univ_lib_facpres/34INTEGRATING FAIR USE INTO INFORMATION LITERACYPERSPECTIVES FROM THE GEORGIA STATE UNIVERSITY ERESERVES AND HATHITRUST LAWSUITSLaura Burtle, Georgia State UniversityMariann Burright, University of GeorgiaACRL INFORMATION LITERACY FRAMEWORK: INFORMATION HAS VALUE Information possesses several dimensions of value, including as a commodity, as a means of education, as a means to influence, and as a means of negotiating and understanding the world. Legal and socioeconomic interests influence information production and dissemination.FAIR USE Fair use is an exception to the exclusive rights of the copyright holder Fair use allows others to make use of a copyrighted work without permission or payment Fair use is a legal response to the need to balance the rights of the owner with the Constitutional purpose of copyright to promote the progress of scienceFAIR USE STATUTE “[T]he fair use of a copyrighted work, including such use by reproduction in copies . . . for purposes such as criticism, comment, news reporting, teaching, . . . scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—” The purpose and character of the use The nature of the copyrighted work the amount and substantiality of the portion used in relation to the copyrighted work as a whole the effect of the use upon the potential market for or value of the copyrighted workCASE LAW Campbell v. Acuff-Rose Music – 1994 Supreme Court decision Transformative Use “[T]he enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”GEORGIA STATE CASE (CAMBRIDGE UNIV. PRESS, ET AL. V. BECKER, ET AL.) Unlicensed electronic reserves – digitized portions of copyrighted books Publishers argue any use is infringing unless licensed GSU argues the uses are fair uses GSU does not argue that the uses are transformative Mirror-image copyingGSU LAWSUIT  U.S. District Court, Northern District Georgia in 2012 found infringing only 5 of 76 alleged infringements 11th Circuit Court of Appeals – Reversed and remanded, but did not find unlicensed use in this context to be infringing as a matter of law U.S. District Court - Northern District Georgia in March, 2016 found infringing 4 of 48 alleged infringements Appeal filed September, 2016HATHITRUST LAWSUIT(AUTHORS GUILD, ET AL.  V.  HATHITRUST, ET AL.) Derives from the Google Books (Google Library) project Mass digitization of books in university libraries, without permission or payment Full books scanned, only metadata visible except for Works in the public domain Works made accessible to the visually impaired Authors Guild argues massive infringement HathiTrust argues TRANSFORMATIVE fair useHATHITRUST LAWSUIT U.S. District Court, Southern District of New York in 2012 finds HathiTrust to be fair use – decision focuses on transformative nature of the project – “non-consumptive purposes” 2nd Circuit Court of Appeals in 2014 affirms No appeal is filedCOMPARING THE CASES IN LIGHT OF THE INFORMATION HAS VALUE FRAME Both cases recognize the value of the information contained in the books The characterization of that value differs between the casesCOMPARING THE CASES IN LIGHT OF THE INFORMATION HAS VALUE FRAME GSU not based on a transformative work theory Decisions focus on the 4th factor - the effect of the use upon the potential market for or value of the copyrighted work, and the 3rd factor, the amount used The market is considered both the market for the original book and the licensed excerpts The book is a commodity – the issue is how to get as much value (profit) from the book as can COMPARING THE CASES IN LIGHT OF THE INFORMATION HAS VALUE FRAME HathiTrust is based on a transformativeness theory Focus on the purpose and character of the use being transformative The market becomes a lesser factor The book is a means of education – the issue is how to get as much value (learning) as canCOMPARING THE CASES IN LIGHT OF THE INFORMATION HAS VALUE FRAME Information possesses several dimensions of value, including as a commodity, as a means of education, as a means to influence, and as a means of negotiating and understanding the world. Legal and socioeconomic interests influence information production and dissemination.FAIR USE BALANCING INFORMATION AS COMMODITY AND INFORMATION AS MEANS OF EDUCATION Copyright law recognizes that information (book) is a commodity and gives the owner exclusive rights, for a limited period, to profit from the work. With the Fair Use exception, copyright law recognizes that information (book) is a public good that promotes the progress of society, here through learningLEARNERS WHO ARE DEVELOPING THEIR INFORMATION LITERATE ABILITIES Understand the purpose and distinguishing characteristics of copyright, fair use . . . respect the original ideas of others; value the skills, time, and effort needed to produce knowledge; see themselves as contributors to the information marketplace rather than only consumers of itFAIR USE AND INFORMATION HAS VALUE Fair use is the bridge that leads from respecting the work of others to building upon that work The cases demonstrate how different facts lead to different balancing of the factors Understanding non-transformative uses (GSU) helps learners consider the value of the information to the owner, and the importance of not overusing others’ work Understanding transformative uses (HathiTrust) helps learners navigate critically approaching others’ works, consider alternative understanding, and advance knowledge in new ways.WHAT DO YOU THINK? Questions? Comments? Discussion?

A working knowledge of fair use is an integral part of information literacy because it empowers the student to use the works of others within legal and ethical bounds. Fair use in U.S. Copyright Law allows people to legally use the creative works of others without asking permission from the copyright owner under certain circumstances. But because fair use is a balancing test of four factors rather than bright line rules, it is not well defined and it ultimately takes a court to determine what is, and is not fair use. In the landmark Georgia State University eReserves case, the North Georgia District Court, considering the case on remand from the 11th Circuit Court of Appeals, recently again ruled in favor of GSU, affirming its practice of fair use. In this session, librarians from GSU and UGA will give an overview of the case, discuss common themes about what courts look for to determine fair use, and what we have learned about fair use from the GSU and HathiTrust cases. This will inform a discussion on how fair use can be integrated into the “Information has Value” frame within the ACRL Framework for Information Literacy to help students and faculty understand its importance in using the work of others

Georgia Southern University: Digital Commons@Georgia Southern

Georgia Southern University Digital Commons@Georgia Southern Georgia International Conference on Information Literacy Sep 30th, 8:30 AM - 9:45 AM Integrating Fair Use into Information Literacy: Perspectives from The Georgia State University eReserves and HathiTrust Copyright Infringement Cases Laura Burtle Georgia State University, lburtle@gsu.edu Mariann Burright University of Georgia, mariann@uga.edu Follow this and additional works at: https://digitalcommons.georgiasouthern.edu/gaintlit Recommended Citation Burtle, Laura and Burright, Mariann, "Integrating Fair Use into Information Literacy: Perspectives from The Georgia State University eReserves and HathiTrust Copyright Infringement Cases" (2016). Georgia International Conference on Information Literacy. 4. https://digitalcommons.georgiasouthern.edu/gaintlit/2016/2016/4 This presentation (open access) is brought to you for free and open access by the Conferences & Events at Digital Commons@Georgia Southern. It has been accepted for inclusion in Georgia International Conference on Information Literacy by an authorized administrator of Digital Commons@Georgia Southern. For more information, please contact digitalcommons@georgiasouthern.edu. INTEGRATING FAIR USE INTO INFORMATION LITERACYPERSPECTIVES FROM THE GEORGIA STATE UNIVERSITY ERESERVES AND HATHITRUST LAWSUITSLaura Burtle, Georgia State UniversityMariann Burright, University of GeorgiaACRL INFORMATION LITERACY FRAMEWORK: INFORMATION HAS VALUE Information possesses several dimensions of value, including as a commodity, as a means of education, as a means to influence, and as a means of negotiating and understanding the world. Legal and socioeconomic interests influence information production and dissemination.FAIR USE Fair use is an exception to the exclusive rights of the copyright holder Fair use allows others to make use of a copyrighted work without permission or payment Fair use is a legal response to the need to balance the rights of the owner with the Constitutional purpose of copyright to promote the progress of scienceFAIR USE STATUTE “[T]he fair use of a copyrighted work, including such use by reproduction in copies . . . for purposes such as criticism, comment, news reporting, teaching, . . . scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—” The purpose and character of the use The nature of the copyrighted work the amount and substantiality of the portion used in relation to the copyrighted work as a whole the effect of the use upon the potential market for or value of the copyrighted workCASE LAW Campbell v. Acuff-Rose Music – 1994 Supreme Court decision Transformative Use “[T]he enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”GEORGIA STATE CASE (CAMBRIDGE UNIV. PRESS, ET AL. V. BECKER, ET AL.) Unlicensed electronic reserves – digitized portions of copyrighted books Publishers argue any use is infringing unless licensed GSU argues the uses are fair uses GSU does not argue that the uses are transformative Mirror-image copyingGSU LAWSUIT  U.S. District Court, Northern District Georgia in 2012 found infringing only 5 of 76 alleged infringements 11th Circuit Court of Appeals – Reversed and remanded, but did not find unlicensed use in this context to be infringing as a matter of law U.S. District Court - Northern District Georgia in March, 2016 found infringing 4 of 48 alleged infringements Appeal filed September, 2016HATHITRUST LAWSUIT(AUTHORS GUILD, ET AL.  V.  HATHITRUST, ET AL.) Derives from the Google Books (Google Library) project Mass digitization of books in university libraries, without permission or payment Full books scanned, only metadata visible except for Works in the public domain Works made accessible to the visually impaired Authors Guild argues massive infringement HathiTrust argues TRANSFORMATIVE fair useHATHITRUST LAWSUIT U.S. District Court, Southern District of New York in 2012 finds HathiTrust to be fair use – decision focuses on transformative nature of the project – “non-consumptive purposes” 2nd Circuit Court of Appeals in 2014 affirms No appeal is filedCOMPARING THE CASES IN LIGHT OF THE INFORMATION HAS VALUE FRAME Both cases recognize the value of the information contained in the books The characterization of that value differs between the casesCOMPARING THE CASES IN LIGHT OF THE INFORMATION HAS VALUE FRAME GSU not based on a transformative work theory Decisions focus on the 4th factor - the effect of the use upon the potential market for or value of the copyrighted work, and the 3rd factor, the amount used The market is considered both the market for the original book and the licensed excerpts The book is a commodity – the issue is how to get as much value (profit) from the book as can COMPARING THE CASES IN LIGHT OF THE INFORMATION HAS VALUE FRAME HathiTrust is based on a transformativeness theory Focus on the purpose and character of the use being transformative The market becomes a lesser factor The book is a means of education – the issue is how to get as much value (learning) as canCOMPARING THE CASES IN LIGHT OF THE INFORMATION HAS VALUE FRAME Information possesses several dimensions of value, including as a commodity, as a means of education, as a means to influence, and as a means of negotiating and understanding the world. Legal and socioeconomic interests influence information production and dissemination.FAIR USE BALANCING INFORMATION AS COMMODITY AND INFORMATION AS MEANS OF EDUCATION Copyright law recognizes that information (book) is a commodity and gives the owner exclusive rights, for a limited period, to profit from the work. With the Fair Use exception, copyright law recognizes that information (book) is a public good that promotes the progress of society, here through learningLEARNERS WHO ARE DEVELOPING THEIR INFORMATION LITERATE ABILITIES Understand the purpose and distinguishing characteristics of copyright, fair use . . . respect the original ideas of others; value the skills, time, and effort needed to produce knowledge; see themselves as contributors to the information marketplace rather than only consumers of itFAIR USE AND INFORMATION HAS VALUE Fair use is the bridge that leads from respecting the work of others to building upon that work The cases demonstrate how different facts lead to different balancing of the factors Understanding non-transformative uses (GSU) helps learners consider the value of the information to the owner, and the importance of not overusing others’ work Understanding transformative uses (HathiTrust) helps learners navigate critically approaching others’ works, consider alternative understanding, and advance knowledge in new ways.WHAT DO YOU THINK? Questions? Comments? Discussion?

Integrating Fair Use into Information Literacy: Perspectives from The Georgia State University eReserves and HathiTrust Copyright Infringement Cases

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Integrating Fair Use into Information Literacy: Perspectives from the Georgia State University eReserves and HathiTrust Copyright Infringement Cases

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