Fair Use and Educational Materials   Emily Bayton Partner Denver

Overview of Statutory Framework Copyright Act of 1976 grants bundle of rights to copyright holders but balances those rights against limitations, with the fair use defense doctrine being the broadest of these limitations (see 17 U.S.C. 107). Fair use is one of the most significant ways the Copyright Act allows persons other than the copyright owner and its authorized licensee to use copyrighted works without authorization. ©2016 Lewis Roca Rothgerber Christie LLP / Strictly Confidential / lrrc.com

Fair Use Rationale and Origins Advancing societal interests in having widespread access to works of authorships vs. preserving copyright owner’s legitimate expectation to control and benefit from use of their works. Fair use has roots in the Copyright Clause of the U.S. Constitution, that the purpose is to “promote the Progress of Science and useful Arts…” (U.S. Constit., art. 1, Section 8, cl. 8) (emphasis added) U.S. doctrine (although a few other common law countries recognize analogous doctrine of fair dealing) ©2016 Lewis Roca Rothgerber Christie LLP / Strictly Confidential / lrrc.com

First Amendment Balancing Fair Use is one mechanism for balancing the tension between the exclusive rights granted to copyright holders and the rights of the freedom of expression under the First Amendment. Referred to as a “First Amendment Safety Valve” ©2016 Lewis Roca Rothgerber Christie LLP / Strictly Confidential / lrrc.com

Statutory Basis Fair Use Factors Preamble to Section 107 The purpose and character of the use The nature of the copyright work The amount and substantiality of the portion used in relation to the copyrighted work as a whole The effect of the use on the potential market for or the value of the copyrighted work Preamble to Section 107 Non-exhaustive list of purposes for which a use of a copyrighted work is fair: Criticism Comment News reporting Teaching (including multiple copies for classroom use) Scholarship Research (17 U.S.C. Section 107) ©2016 Lewis Roca Rothgerber Christie LLP / Strictly Confidential / lrrc.com

Purpose and Character of Use In evaluating the purpose and character of use, courts will generally analyze: Whether the use is of a commercial nature (commercial vs. non-commercial) (direct financial gain is not required) Whether the use is transformative The question of whether the work is transformative has become so dominant in the fair use analysis that many scholars believe it can be determinative in the court’s analysis of fair use. Transformative = fair use; Non-transformative = infringement ©2016 Lewis Roca Rothgerber Christie LLP / Strictly Confidential / lrrc.com

Transformative Uses A use is said to be transformative if it: Adds something new to the underlying copyrighted work. Has a different function, purpose, or character than the original work. The new use must not be seen as being competitive with or replacing the original

Nature of the Copyrighted Work The second factor considers the extent to which the original copyrighted work is: Creative or factual (the more creative the closer it is to the core of copyright protection and the less likely use of the work would be deemed to be fair use) Published or unpublished (uses of published works are more likely to qualify as fair use because author has already exploited the commercially valuable right of first publication) This factor is seldom determinative in the fair use analysis ©2016 Lewis Roca Rothgerber Christie LLP / Strictly Confidential / lrrc.com

Amount and Substantiality of the Portion Used Does the new work only use as much of the original work as is necessary? Quantitative analysis Taking only a small portion of a work typically favors a finding of fair use, provided that…. Qualitative analysis The portion taken doesn’t constitute the “heart” of the work ©2016 Lewis Roca Rothgerber Christie LLP / Strictly Confidential / lrrc.com

Effects on the Market for the Copyrighted Work Courts consider: Direct harm from the use at issue. Harms that may result from potential, similar infringing uses. Examples of direct harm: Lost or diverted sales Lost royalties or licensing revenue ©2016 Lewis Roca Rothgerber Christie LLP / Strictly Confidential / lrrc.com

Authors Guild, Inc. v. Google Inc. Issue: Whether it was a fair use to digitally copy entire books from library collections, without permission or payment, and to make the digital copies available for library collections and for the public to search electronically using a search engine. Holding: Google’s unauthorized digitization of books so they could be searched electronically was fair use because Google’s search and snippet views functions contribute substantial benefits to public knowledge by allowing the public, for the first time, to conduct instantaneous full-text searches of more than twenty million books. The court likewise found that “Google’s provision of digital copies to participating libraries, authorizing them to make non-infringing uses, is non-infringing, and the mere speculative possibility that the libraries might allow use of their copies in an infringing manner does not make Google a contributory infringer.”   ©2016 Lewis Roca Rothgerber Christie LLP / Strictly Confidential / lrrc.com

Authors Guild, Inc. v. HathiTrust Issue: Whether defendant’s use of copyrighted materials in connection with its full-text search and access for print-disabled individuals was a fair use. Holding: The US Court of Appeals held that it was fair use for university libraries to scan copyrighted works to create a word-searchable digital database of their existing collections; and help in the production of special copies for visually-impaired students because the use was transformative because it served a wholly different purposes, character, expression, meaning, and message from the original works. ©2016 Lewis Roca Rothgerber Christie LLP / Strictly Confidential / lrrc.com

Diversey v. Schmidly Issue: Whether it was a fair use for the university to make a copy of plaintiff’s dissertation and add it to a library collection where it was available to patrons. Holding: While the Tenth Circuit agreed that the statute of limitations barred plaintiff’s copying claim, it rule that plaintiff’s distribution claim did not accrue until when he learned that the library had made the dissertation available to patrons. The court then rejected the fair use defense finding that although the purpose and character of the use was for non-commercial, educational purposes, the second factor of the nature of the work weighed in plaintiff’s favor because it was an unpublished work. The amount of the work used also weighed against a finding of fair use, and finally the inclusion of his dissertation deprived plaintiff of the value of his dissertation by preventing him from effectively completing dissertation review and defense at another institution.

Cambridge Univ. Press v. Patton Issue: Whether Georgia State University’s adoption of the 2009 copyright policy caused ongoing and continuing misuse of the fair use doctrine and resulted in infringement of plaintiff’s works. Holding: The District Court did not err in performing a work- by-work analysis of individual instances of alleged infringement in order to determine the need for injunctive relief. However, the District Court did err by giving each of the four fair use factors equal weight, and by treating the four mechanistically.