On October 17, 2014, The Eleventh Circuit Court of Appeals expounded upon the test used to determine the “fair use” exception to copyright protection. The district court initially held that faculty members’ use of certain electronic course reserves and electronic course sites to make excerpts from academic books available to students at Georgia State University (GSU) was “fair use.” AAUP submitted an amicus brief to the Circuit Court urging it to affirm the district court’s ruling and to clarify that a “transformative use” analysis may also be used to determine “fair use.” The Circuit Court reversed the district court’s decision, agreeing with much of the district court’s fair use analysis, but not with how it applied that analysis: “The District Court did err by giving each of the four fair use factors [purpose of the new use, the nature of the original work, the amount of the work being used, and the impact on the new use on the market for the original work] equal weight, and by treating the four factors mechanistically. The District Court should have undertaken a holistic analysis which carefully balanced the four factors.”
In the district court case, Plaintiffs Oxford University Press, Cambridge University Press, and Sage argued that the unlicensed posting of digital excerpts for student access almost always exceeded fair use and should require a license. The district court applied the “fair use” test using an arithmetic approach (essentially weighing each factor equally and concluding that if three of the factors favored the user, then the use was fair) and determined that the vast majority of the alleged infringements (or excerpts)—all but five—constituted fair use.
The Circuit Court disagreed with the district court’s application of the “fair use” test. While agreeing that the nonprofit educational purpose of GSU’s copying supported fair use, the Circuit Court expressed concern that the use was not “transformative” (e.g., a parody) in that it achieved the same educational purpose as the original work. Because of this, the first factor carries less weight in the overall fair use decision. The Circuit Court also rejected the district court’s 10 percent or one chapter bright-line rule, and wrote “the District Court should have performed this analysis on a work-by-work basis, taking into account whether the amount taken -- qualitatively and quantitatively -- was reasonable in light of the pedagogical purpose of the use and the threat of market substitution.”
AAUP argued in its amicus brief that the Circuit Court should also consider a “transformative use” analysis which compares the purpose for which faculty use copyrighted material in their teaching with the original purpose for which the work was intended. AAUP argued that by making transformative use of a copyrighted work, faculty “employ the original work in a new way in order to express new ideas, add meaning, and convey new messages,” thereby “add[ing] to our collective knowledge and understanding.” AAUP contended that an alternative transformative use analysis “would not primarily focus on the act of posting copyrighted works, the format in which the works were posted, or how much was used; but, rather, on how the works were used in teaching.” By “looking at the intended purpose of the use” courts can determine “whether the use supplants the original work or whether, in the case of transformative use, it creates new meanings and expresses new messages that copyright owners have no right to monetize or prevent.” AAUP concluded that by protecting transformative uses as non-infringing, the fair use doctrine ensures that copyright can coexist with the First Amendment’s protection of free speech. The circuit court did not directly address the argument put forth in the AAUP amicus brief, however, this issue may be addressed in future cases.
The Circuit Court’s “dueling” analysis of the “fair use” doctrine directly impacts the professoriate. On the one hand the Circuit Court espouses, “To further the purpose of copyright, we must provide for some fair use taking of copyrighted material. But if we set this transaction cost too high by allowing too much taking, we run the risk of eliminating the economic incentive for the creation of original works that is at the core of copyright and -- by driving creators out of the market -- killing the proverbial goose that laid the golden egg.” Yet, the Circuit Court is also persuaded by the copyright law’s fair use protections for colleges and universities. “Congress devoted extensive effort to ensure that fair use would allow for educational copying under the proper circumstances. . .” Without the presence of clear standards and ascertainable rules, faculty, who are not experts in copyright law, will either use without deliberation of the fair use analysis or self-censor, diminishing the value of the fair use doctrine.