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Ten Percent Is Fair Use For Educational Institutions – Copyright Owners Disappointed

A U.S. District Court (trial court) has found that when teachers at an educational institution (for example, the University of Georgia) use less than ten percent (10%) of a copyrighted book, then such use is fair use and does not constitute copyright infringement. Cambridge University Press v. Becker, Case no. 1:08-cv-01425 (N.D. Ga May 11, 2012) (available here). This massive, 350 page decision from the court after a bench trial, establishes a clear set of guidelines for determining whether use in an educational setting constitutes fair use and not copyright infringement. It is uncertain whether the 11th Circuit Court of Appeals will uphold the 10% rule in Cambridge however other commentators have applauded the logic in the decision. See blog.copyrightalliance.org; jdsupra.com; and arl.com (”Issue Brief: GSU Fair Use Decision Recap and Implications” by B. Butler, Assn. of Research Libraries).

The case involves the use of unpaid copying of excerpts of copyrighted material by a nonprofit college or university for nonprofit educational use in graduate or upper level undergraduate (upper level college courses). Cambridge University Press v. Becker at slip opn. p. 27 (herein “p. xx”). Defendants, the Georgia State college system, taught teachers to use a fair use checklist in order to determine whether or not to electronically post copyrighted content online in a secure, “classroom only” reserve space in the university’s computer-based library system. Plaintiffs were the owners, by assignment, of the copyrights originally owned by the authors or were exclusive licensees of the right to publish the works. The scope of the court’s task is aptly summed up by recognizing that “[b]y far the most fundamental difficulty is the [application of the] very fluid framework for resolving fair use issues which is established by copyright law.” P. 19.

To determine when a particular use is a “fair use,” four statutory factors must be considered: (1) the purpose and character of the use; (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. 17 U.S.C. § 107. These factors are not exclusive. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 588 (1985).

“It is hornbook law that there is no across the board rule for what weight should be given to each factor or how the factors should be applied. Campbell v. Acuff- Rose Music, Inc., 510 U.S. 569, 577-78 (1994); Harper & Row, 471 U.S. at 588. This determination is made after a fact-intensive, value-laden review in each case of claimed infringement. In Campbell, the Supreme Court’s last fair use decision, the Court reaffirmed that fair use does not rest on ‘bright-line rules’ and (quoting Harper & Row, 471 U.S. at 560). The Supreme Court then added, ‘Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.’ Id. at 578.” pp. 19 – 20.

“Another difficulty is that there is no precedent on all fours for how the factors should be applied where excerpts of copyrighted works are copied by a nonprofit college or university for a nonprofit educational purpose. Thus, assuming that there is some efficacy in having a ‘fair use checklist’ that professors must fill out before using a copyrighted excerpt, what should be in it may be open to debate. The Court believes that the best way to proceed is first to decide how the four fair use factors should be applied in a case such as this one (unpaid copying of excerpts of copyrighted material by a nonprofit college or university for nonprofit educational use in graduate or upper level college courses).” p. 27.

Section 107 of the Copyright Act entitled “Limitations on Exclusive Rights: Fair Use” provides:

“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), 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–(1) the purpose and character of the use, including whether such use is of a 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.” 17 U.S.C. 107.

Factor One – Purpose and Character of Use

This factor favors the Georgia State Defendants. Although the Cambridge Plaintiffs (content providers) cited Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991); Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996); and American Geophysical Union v. Texaco Inc., 60 F.3d 913, 919 (2d Cir. 1994), the court rejected that approach because Georgia State’s use was purely non-profit educational institutional use and the cited cases were all commercial enterprises.

Factor Two – Nature of Copyrighted Work

The court noted that the copied works were mainly scholarly or educational works and not fictional works and this weighed in favor of Georgia State. “In Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996), the Sixth Circuit noted, with no discussion, that the nature of the copyrighted materials which were assembled into coursepacks by the defendant leaned against fair use under the second statutory factor.” P. 60. However, in another coursepack case, Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991), the court found that excerpts from copyrighted works which had been used in commercially printed coursepacks were factual in nature and thus the second factor weighed in favor of the educational institute. See pp. 60 – 61.

Factor Three – Amount and Substantiality of the Portion Taken

Factor three requires consideration of both the quantity and the value of the amount copied in relation to the overall book. The copied portion must be reasonable in relation to the work from which it was taken and the purpose for which it was used. Campbell, 510 U.S. at 586. Also, consideration must be given as to whether the amount taken is reasonable given the likelihood of market substitution. Peter Letterese & Assocs., Inc. v. World Inst. of Scientology Enters., Int’l, 533 F.3d 1287, 1314 n.30 (11th Cir. 2008). The word “substantiality” as used in § 107(3) means “value.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994) (quoting Folsom v. Marsh, 9 F.Cas. 342, 348 (C.C. D. Mass. 1841)). P. 74.

“The fact that the excerpts were mirror-image copies favors market substitution (thus leaning against fair use), but this tendency is reduced when the excerpt is small. Ultimately a decision as to what amount of copying is permissible as fair use requires consideration of fair use factor three in conjunction with factors one and four.” P. 65

The court then analyzed the “Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals,” commonly called the “Classroom Guidelines,” set out in H.R. REP. No. 1476 at 68-71, 94th Cong., 2d Sess. (1976). The Classroom Guidelines established a safe harbor for educational copying of copyrighted materials.

“The safe harbor is very restrictive; it allows multiple copies to be made for classroom use only if the copying meets stated tests of brevity, spontaneity, and cumulative effect. To meet the test of brevity, the amount copied of a prose work may be ‘either a complete article, story or essay of less than 2,500 words’ or ‘an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less.’ The test of spontaneity requires that the decision to use the work and the moment when it is used ‘are so close in time that it would be unreasonable to expect a timely reply to a request for permission.’ Finally, under the cumulative effect test, the copying may only be for one course, no more than three articles from the same collective work or two excerpts from the same author may be used during one class term, and a teacher may not have more than nine instances of such copying for one course. In addition, the Guidelines state a blanket prohibition that copying shall not ‘substitute for the purchase of books, publishers’ reprints or periodicals’ nor ‘be repeated with respect to the same item by the same teacher from term to term.’” P. 63.

Plaintiff sought to impose the Classroom Guidelines via an injunction in the Cambridge case but conceded that the spontaneity element need not be imposed. The court declined to adopt this position.  

As to amount, the court noted that copying a de minimis part of a copyrighted work is not an infringement at all. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 451 n.34 (1984). The court addressed whether the forward and table of contents should be counted as part of the work (yes), and whether books having different authors for different chapters should be considered as a single work (yes, “the chapters of the edited books do not have greater value than the chapters of the single author books” p. 76). These decisions fed into whether the percent copied is an excessive “amount.” Also, a copy-by-work analysis is needed to determine whether the heart of the copyrighted work was taken. See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 565 (1985)( “the heart of the book”); and Kinko’s, 758 F. Supp. at 1533 (for “critical part” of a book).

The court did not accept the plaintiff’s statement that simply because the professor selected the excerpt for his or her students, that this meant that the selection was the critical part of the book. P. 75. The thoughtfulness of the court’s ruling is evident from the following passage.

“A chapter of an academic book is a unit which, in all likelihood, covers a particular theory or topic, so as to make it suitable for use in a course which covers a broader, related overall subject matter. Because this case does involve strictly educational, nonprofit uses, it is relevant that selection of a whole chapter of a book (either from a typical, single author chapter book or from an edited book) likely will serve a more valuable educational purpose than an excerpt containing a few isolated paragraphs.” P. 75.

Factor three can only be determined by comparing the copied material to the copyrighted work, a copy-by-work analysis.

Factor Four – Effect on the Market of the Copyrighted Work

Defendants have the burden of proving that any harm from the infringing use is insubstantial. See Campbell, 510 U.S. at 590; Peter Letterese & Assocs., Inc. v. World Inst. of Scientology Enters., Int’l, 533 F.3d 1287, 1307 n.21 (11th Cir. 2008). P. 80. The adverse market effect, in the context of the fair use analysis, is primarily concerned with market substitution. Peter Letterese, 533 F.3d at 1315. If the infringing copy is identical, defendant’s infringing copy substitutes directly for the copyrighted original. This impacts the marketability of the original and reduces its value, causing harm to the copyright owner. However, the court reverted back to the 10% rule and stated: “Thus, if a professor used an excerpt representing 10% of the copyrighted work, and this was repeated by others many times, would it cause substantial damage to the potential market for the copyrighted work? The answer is no, because the 10% excerpt would not substitute for the original, no matter how many copies were made.” P. 81

The court agreed with the 2nd Circuit’s decision in American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994, amended 1995) wherein the appeals court held that it was not fair use when Texaco’s engineers copied and distributed scientific articles within the company, when CCC (Copyright Clearinghouse Company) sold licenses for the scientific articles. “[W]here excerpts are reasonably available, at a reasonable price, it is only fair for this fact to be considered in determining whether Defendants’ unpaid uses of excerpt constitutes a fair use. Fair use is an equitable doctrine. Peter Letterese, 533 F.3d at 1308.” P. 82. However in Cambridge, the publishers did not have this licensing scheme. Plaintiffs “witnesses did not specifically identify which of the works at issue here were available for licensing through CCC in 2009.” p. 84. Cambridge failed to show that licenses for digital copies of its works were generally available at that time. p. 85.

“With respect to Defendants’ uses of excerpts where digital permissions were not shown to be available, the Court finds that the unpaid use of the excerpts caused no actual or potential damaged to the value of the books’ copyrights.” P. 86. “In those cases in which digital permissions were available, the Court finds that Defendants’ own unpaid uses (the Georgia State professors’ and students’ uses) of individual excerpts caused extremely small, though actual, damage to the value of the books’ copyrights.” Id

Harm From Widespread Conduct

The court considered additional factors effecting fair use such as what harm would ensue from “widespread conduct of the sort engaged in by the defendant.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994). The court found that the limited unpaid copying of excerpts will not deter academic authors from creating new academic works. Plaintiffs called no authors of the works at issue to testify on this point. Several Georgia State professors who testified at trial stated that royalties are not an important incentive for academic writers. Also, the slight limitation of permissions income caused by the fair use authorized by the court’s ruling will not appreciably diminish Plaintiffs’ ability to publish scholarly works and will promote the spread of knowledge. See Golan v. Holder, 132 S. Ct. 873, 888 (2012)(both the creation and the spread of knowledge are important to serving the aim of the Copyright Clause).

As aptly stated by the court: “Allowing use of unpaid small excerpts of copyrighted works by students does help spread knowledge, because it reduces the cost of education, thereby broadening the availability of education. On the other hand, diminished receipts of permissions income by Plaintiff publishers could reduce their ability to publish, thereby diminishing the spread of knowledge.” P. 90.

In conclusion, this thoughtful opinion indicates that if a non-profit educational institution permits use of no more than 10% of a copyrighted work and limits these excerpts to students in an assigned class, then such use may be deemed to be fair use of the copyrighted work.

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