Cambridge University Press et al v. Patton et al.

The U.S. Court of Appeals for the 11th Circuit vacated the district court’s decision holding that digital excerpts of books from three academic publishers provided to students at Georgia State University were protected by fair use, finding that the district court erred in giving each of the four factors used in the fair use analysis equal weight.  Cambridge University Press et al v. Patton et al., Case Nos. 12-14676; 15147 (11th Cir., Oct. 17, 2014) (Tjoflat, J.)

Oxford University Press, Cambridge University Press and Sage Publications (collectively, the plaintiffs) sued several officials at Georgia State University (GSU) claiming that GSU had encouraged its professors to upload copyrighted works to the school’s electric reserve system.

After the district court ordered the publishers to produce a list of the claimed infringements, it found that only five infringements had resulted from the university’s policies.  The district court found that in 43 instances the digital copies were protected by fair use.  The plaintiffs appealed.

The concept of fair use in copyright law refers to whether the reproduction of a particular work—such as criticism, comment, news reporting, teaching, scholarship and research—may be considered fair.  Section 107 of the Copyright Act sets out the following four factors to be considered in determining whether or not a particular use is fair: (1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for, or value of, the copyrighted work.

On appeal, the publishers argued that previous case law held that copying material for a paper course pack does not constitute fair use.  The 11th Circuit reversed, finding that the district court erred in giving each of the four factors used in the fair use analysis equal weight.  The Court agreed with the district court that the first factor, directed to the nature of the use, favored GSU because the use was for nonprofit educational purposes.  The Court also agreed with the district court regarding the fourth factor (economic impact) but explained that it should have given this factor more weight, because the threat of market substitution was severe.

The 11th Circuit did not agree with the district court’s analysis regarding the second and third factors, explaining that the nature of the works was neutral or slightly against fair use since the material at issue contained analytical or descriptive material, or was based on the author’s opinions.  As for the third factor, the district court explained that whether the amount copied was “reasonable in light of the pedagogical purpose of the use and the threat of market substitution” should have been the subject of analysis, rather than a set quantity limit of 10 percent or one chapter.  The district court’s decision that the 43 copyrighted materials were protected by fair use was therefore reversed.