Page:The librarian's copyright companion, by James S. Heller, Paul Hellyer, Benjamin J. Keele, 2012.djvu/83

Chapter Four. Fair Use (Section 107) restrictive. Like the American Association of University Professors, the American Association of Law Schools, the American Library Association, and the authors of this book, the court believed that classroom copying could be considered a fair use even if it goes beyond the Classroom Guidelines. In place of the Guidelines’ much more restrictive standards, the court held that copying not more than 10% of a book or, in books with ten or more chapters, not more than one chapter, would indicate fair use under factor three. In this case, Georgia State’s copying was mostly within the limits set by the court.

Does that mean you can always copy up to 10% of a book and call it a fair use? No. The court made it clear that its 10%-or-one-chapter rule was specific to the facts of this case. Does that mean you can never copy more than 10%? Again, the answer is no. Remember that the third factor is just one part of the fair use test.

As for the fourth factor (effect on potential market or value), the court found that the plaintiffs had not lost any book sales as a result of the copying and only a very small amount of permissions revenue. Nonetheless, the court held that if a digital license for an excerpted work was readily available and reasonably priced, the fourth factor would favor the publishers. In this case, digital licenses typically were not readily available, and so the fourth factor usually favored Georgia State.

Because the first and second factors always favored Georgia State, and the third and fourth factors usually did too, nearly all the instances of copying in this case were fair uses. The court’s fairly liberal limits on the amount of copying and its skepticism about the publisher’s lost sales were the key to Georgia State’s win. Now we must wait to see what the U.S. Court of Appeals says.

Finally, we’ll address one last question that sometimes comes up: by asking the owner for permission, are you giving away any fair use rights