University fair use policies were dealt a blow in October when the U.S. Court of Appeals for the 11th Circuit reversed the District Court ruling in Cambridge Press v Georgia State University (GSU).
Cambridge Press alleged that GSU’s policy allowing professors to make digital excerpts available to students infringed their copyrights. The District Court had held that Cambridge Press failed to establish many instances of infringement and that the fair use defence applied in many others, leaving only 5 instances of infringement remaining.
The Court of Appeal held that the District Court’s methodology for weighing the four fair use factors combined with the erroneous application of factors two and three resulted in a legally flawed analysis. Moreover, the court should have taken a more holistic analysis and erred in giving each of the factors equal weight. Each time an excerpt fell within 10 percent or one chapter the lower court automatically held the third factor favoured fair use. Thus thirty-five of the forty-eight instances of copying were fair use by virtue of this alone, unless the factors resulted in a tie, in which case the court revisited analysis of the factors and reviewing and reweighing them for the specific work. The appeal decision focused on the case-by-case nature of a fair use analysis and rejected what it called the District Court’s “mechanical” application of the factors.
The ruling may have implications for many universities in the United States. The case directly implicated GSU’s fair use policy, which included a mechanical “Fair Use Checklist” based on the analysis performed by the courts. If more than half of the factors in the checklist were in favour of fair use then professors could post the materials online. If it did not, then they had to seek permission from the rights holder. Many universities have policies similar to GSU that use the 10 percent or one chapter rule which was developed by the “Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions With Respect to Books and Periodicals.” In this case, the court held that the District Court was wrong to mechanically find that any use that fell within this guideline meant that factor three weighed in favour of fair use and did not require further analysis. Instead, the court held that each individual use must be considered in proportion to the whole with reference to the guidelines.
The GSU ruling aligns with case law on fair use and even fair dealing in Canada. In Alberta Education the Supreme Court of Canada held that the Copyright Board was required to determine whether the excerpts used by teachers were fair in proportion to the whole work, which is the same critique the Appeals Court had of the District Court’s decision. Referencing SOCAN v Bell, Alberta Education also noted that the amount is not quantitative but the aggregate proportion between the excerpt and whole work. The quantification is considered under the character of the dealing per CCH.
The GSU ruling may also be of interest north of the border as the Access Copyright claim against York University develops. Access Copyright alleges that York University’s fair dealing guidelines “authorize and encourage copying that is not supported by the law”. Like GSU, the York policy allows 10% or less of a work or no more than a single chapter or article. However, as pointed out by Michael Geist, this amount is somewhat approved by the Supreme Court, which stated in CCH that “it may be essential to copy and entire academic article or entire juridical decision”. In CCH the Supreme Court found that the access policy placed appropriate limits on the type of copying done by the Law Society and the policy rather than each individual instance of copying may be the subject of analysis. However, as in GSU and Alberta Education the policy itself is not enough to claim fair dealing, the courts will still likely analyze each policy and perhaps even some of the copying taking place under the policy.
The challenge for institutions is to have a policy in place that can be broadly applied while remaining flexible enough to be sensitive to the case-by-case nature of fair dealing. In this respect, the mechanical approach taken by the District Court may have provided a useful standard for universities to work with and depend on when developing fair use policies. Instead, the uncertain nature of the case-by-case analysis often results in overly cautious copying practices and increased risk of infringement suits. This ruling may thus have universities on both sides of the border taking a hard look at their policies.
Allison McLean is a JD Candidate at Osgoode Hall Law School and is enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.
