Is distributing unlicensed copies of course material to students copyright infringement?

A copyright is a set of exclusive rights granted to someone that creates an original work of authorship. Even though United States copyright law uses the word author, that word includes many other creative occupations like painters, sculptors, photographers, musicians and software writers. An original work of authorship is something created by one of these creative occupations. An author can register their copyright with the library of congress to strengthen the rights associated with the copyright, but registration is not required for the author to be granted a copyright to their work. Copyright grants an author the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original. If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement. A copyright owner can file a lawsuit for an injunction to stop copyright infringement and to get monetary damages for copyright infringement which has occurred.

The exclusive rights granted to a copyright owner are not unlimited. Fair use is an element of copyright law that excuses a defendant from liability for copyright infringement. The reason that fair use exists is that copyright law is intended to promote the advancement of the arts and sciences, a fair use of copyrighted matter is a use that promotes advances. The four factors judges considers in a fair use defense are: (1) the purpose and character of your use (2) the nature of the copyrighted work (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market.

A significant cost of university education are textbooks. Students are required to purchase textbooks which can cost hundreds of dollars each, and sometimes the textbooks do not have all the material a professors wants to teach. Technology has made it easier to reproduce and distribute the contents of books. Some university professors choose to reproduce excerpts multiple different textbooks and distribute it to their students, rather than making their students buy multiple expensive textbooks. The question then becomes is university’s electronic distribution of unlicensed copyrighted works to students is a fair use?

A case which illustrates a fair use defense to copyright infringement is Cambridge University Press v. Albert, 16-15726 (11th Cir. Oct. 19, 2018). The plaintiffs in this case are publishers of university text books. The defendant is a university that was distributing digital copies of the plaintiff’s text books without permission. The plaintiff’s sued for copyright infringement. The district court applied the four fair use factor’s to the university’s actions and assigned each factor a specific value. The district court found that the University had committed copyright infringement but, in 44 of the 48 instances of infringement it was a fair use. The plaintiffs appealed.

The Court of Appeals for the Eleventh Circuit vacated the district court’s fair use determination and remanded for further proceedings. Related to the fourth fair use factor, the Eleventh Circuit held that the district court correctly concluded that the central question was whether a use would cause substantial economic harm such that allowing it would frustrate the purposes of copyright by materially impairing the copyright owner’s incentive to publish the work. Related to the third fair use factor, the Eleventh Circuit rejected the district court’s determination that the high prices the Publishers charged for licenses justified the University’s use of more of the content than may otherwise be considered fair use. The Eleven Circuit instructed the district court to consider the four fair use factors as a whole and not assign specific weight to any one factor over another.

Even though the district court originally sided with the University it looks like fair use will not be a defense in this case.

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