The fair use concept began as a defense to charge of copyright infringement. Once it became codified in the Copyright Act, it became more than just a defense. It took on more of the character of a statutory right, particularly in the educational context, because the fair use provision in the Copyright Act speaks explicitly about “teaching” and “scholarship” and the fair use of “multiple copies for classroom use.” For this reason, a challenge to an academic institution claiming fair use of scholarly works merits close attention because of its usefulness in clarifying the parameters of the fair use test in the educational context.

The recent ruling of the Eleventh Circuit in Cambridge University Press v. Patton involved just such a challenge. In this case, three academic publishers – Cambridge University Press, Oxford University Press, and Sage Publications – sued Georgia State University (GSU) for copyright infringement because of GSU professors’ extensive practice of posting excerpts of scholarly texts online for use by students via course-specific webpages. GSU’s system allows a single scholarly publication to be scanned and posted online where it may be accessed, copied, and printed by students enrolled in a specific course.

GSU raised fair use as a defense to the publishers’ infringement claim, and, in support of that defense, explained that it uses a “fair use checklist” to help professors determine when their proposed uses of third-party copyrighted works qualifies as a fair use. Such checklists are used fairly commonly by academic institutions as part of their copyright policy. The statutory test for fair use requires analysis under four distinct factors, stated briefly: (1) the purpose and character of the use, (2) the nature of the work used, (3) the amount of the work used and its importance in the work, and (4) the effect of the use on the market for the original work. So, to some extent, the four-factor test lends itself to a checklist approach. The court described the GSU checklist as instructing professors “to check each criterion that applies, and then add up the checks to determine whether the factor weighs in favor of or against a finding of fair use,” and the checklist then proclaims that “where the factors favoring fair use outnumber those against it, reliance on fair use is justified.”

The district court also tallied factors when it applied the fair use analysis, and because it found that three of the four factors supported fair use, it ruled in favor of GSU.

The publishers appealed to the Eleventh Circuit and argued that the district court’s “add up the factors” approach was flawed. The Circuit court agreed that “the District Court’s arithmetic approach was improper.” The Eleventh Circuit, citing Supreme Court precedent as guidance, reasoned that the four factors do not mechanistically resolve fair use cases but instead must be considered as a whole in light of the purposes of the Copyright Act, and that “a given factor may be more or less important in determining whether a given use should be considered fair.” In other words, one factor can sometimes tip the scale if it is deemed to be highly important in a particular case, or it can carry minimal weight if it is deemed to be insignificant in a different case.

The Eleventh Circuit also found that the district court’s analysis under the third factor was incorrect. The third factor considers the amount of the work used and its importance to the work. Significantly, this factor concerns not only the quantity of borrowed material, but also the significance of the borrowed material in the context of the whole work. The district court found in favor of fair use when the amount copied from a borrowed work was “no more than 10 percent of a work, or one chapter in case of a book with 10 or more chapters.” The Circuit court found that this “blanket 10 percent-or-one-chapter benchmark” was improper, because fair use analysis must be applied on a case-by-case basis, and the third factor requires a qualitative as well as a quantitative determination.

In demolishing the score-tallying aspect of the GSU checklist, the district court’s arithmetic approach to applying the four fair use factors, and the district court’s blanket use of a 10 percent analysis under the third factor, the Eleventh Circuit’s opinion stands as a reminder that fair use determinations need to be made not only on a case-by-case basis that considers the unique facts of each borrowed usage, but also in a holistic rather than a mechanistic manner. The reminder is all the more sharp because it comes out of an academic context – the natural habitat for fair use – in which both a major university and a federal district court were trying to do the right thing under the Copyright Act.