U.S. Court of Appeals for the Eleventh Circuit, Cambridge University Press v. Albert, Docket No. 16-15726

Copyright: Fair use:

17 U.S.C. § 107.

License:

Market harm:

Cambridge University Press, Oxford University Press, Inc., and Sage Publications, Inc. publish academic works. Cambridge Univ. Press v. Patton (Cambridge II), 769 F.3d 1232, 1238 (11th Cir. 2014). The publishers “market their books to professors who teach at universities and colleges” so that the professors will “assign them as required reading” for their courses and “students will purchase them.” Id. at 1238–39. The publishers also sell “licenses to use excerpts of their copyrighted works.” Id. at 1276. In the past, professors commonly assigned—and students purchased—paper “coursepacks” of licensed excerpts. Id. at 1239. But it has become more common for universities to distribute digital excerpts electronically. Id. The publishers license users “to photocopy and to digitally reproduce portions of their works.” Id. at 1240. They offer such licenses, called “permissions,” both directly and through the Copyright Clearance Center. Id.

The Copyright Act enumerates four “factors to be considered” in finding that “the use made of a work in any particular case is a fair use” instead of an infringement. 17 U.S.C. § 107. The first factor is “the purpose and character of the use, including whether it is of a commercial nature or is for nonprofit educational purposes.” Id. § 107(1). The second factor is “the nature of the copyrighted work.” Id. § 107(2). The third factor is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” Id. § 107(3). And the fourth factor is “the effect of the use upon the potential market for or value of the copyrighted work.” Id. § 107(4).

(…) We also mentioned the “ample precedents that explain that excessive verbatim copying weighs against fair use under factor three.”

(…) The only error we identified in the district court’s treatment of the fourth factor was that, in weighing and balancing the relative importance of the factors, it undervalued the “severe” threat of market harm posed by the University’s “nontransformative” copying.

(…) On remand, the district court must reinstate its original findings that the fourth factor strongly disfavors fair use for the 31 excerpts for which the publishers proved the availability of digital licenses.

(…) In Cambridge II, we identified two distinct ways in which, in its original analysis, the district court failed to recognize that “a given factor may be more or less important . . . under the specific circumstances of a particular case.” Cambridge II, 769 F.3d at 1260. First, we explained that “the District Court erred in giving each of the four factors equal weight.” Id. Second, we explained that the district court erred “in treating the four factors as a simple mathematical formula,” which we also described as an “arithmetic approach.” Id.

On remand, the district court corrected the first of these errors but again committed the second. The district court assigned “initial, approximate respective weights of the four factors as follows: 25% for factor one, 5% for factor two, 30% for factor three, and 40% for factor four.” Cambridge III, slip op. at 14. Although the district court heeded our instructions in Cambridge II when it recognized that some factors are more important than others, it failed to break free of its erroneous “arithmetic approach” and to give each excerpt the holistic review the Act demands.

(…) The district court twice erred in applying the third factor of the statutory test of fair use when it considered whether the cost of licensing was “excessive” in the light of the publishers’ “marginal cost for authorizing digital copies . . . , which would not vary no matter how many digital copies were authorized.” Cambridge III, slip op. at 116, 176. The district court reasoned that high prices “allowed it to look more favorably on the quantity of the University’s use than it otherwise would.” Id. at 116, 176. In these two instances, the district court deviated from the language of the Act.

The third factor of the statutory fair-use test is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). This provision of the Act does not direct courts to consider the price of the unpaid use. If it did, then the district court’s reasoning could tilt the third factor in favor of fair use even in cases of extensive verbatim copying. After all, it is always the case that a publisher’s “marginal cost for authorizing digital copies would be virtually nil, and would not vary no matter how many digital copies were authorized.” Cambridge III, slip op. at 116, 176. When we instructed the district court to correct its analysis under the third factor on remand, we did not include this consideration. See Cambridge II, 769 F.3d at 1275. The district court erred when it twice considered the price of the unpaid use as relevant to the third factor.

(U.S. Court of Appeals for the Eleventh Circuit, Cambridge University Press v. Albert, Oct. 19, 2018, Docket No. 16-15726, Circuit Judge Pryor, for publication)

Descriptions de questions liées aux quatre facteurs énumérés par la loi fédérale sur le copyright permettant de considérer que l’utilisation d’une œuvre protégée n’est pas une violation du copyright mais remplit les conditions de l’exception « fair use ».