Jon Band has summarized three recent fair use case holdings in an article entitled, Educational Fair Use Today, published by the Association of Research Libraries. He notes that the cases all found fair uses in commercial contexts (artwork, a search engine case involving images, and the use of small copies of posters in a coffee table book) and so strengthen fair use, particularly when fair use is employed in transformative circumstances.
Most importantly, he believes that transformative is taking on a new meaning beyond the idea of changing the nature of the work, like a parody changes the underlying work or scholarly criticism uses another work. Two of the three courts find uses transformative because the defendants "repurposed" the work, that is, they used it in a way that was different from the use intended by the copyright owner. He goes on to suggest that uses in higher education such as exposing students to journal articles that were written for scholars, not students, is arguably repurposing the articles and thus makes a transformative use of them.
Of course he notes that this suggestion might not be accepted by publishers. On this we agree. I can imagine their reaction -- If using journal articles in classroom instruction is a transformative fair use, I suppose we could stop licensing databases of articles for our students and just license them for our much smaller numbers of faculty members, at a tremendous savings. At UT that would subtract about 45,000 full time equivalents from our user base. Publishers would raise an eyebrow, to say the least.
But, even beyond the argument's practical problems, I would caution that it may put the cart before the horse in assuming that courts reached the conclusion that a use was fair on the basis of its being transformative.
In particular, in the search engine cases, it appears to me that transformative is used to explain decisions, not to decide them. Consider Perfect 10 -- it seems to me that the reason the court found the use of the little naked lady pictures fair was because to not do so would jeopardize an amazingly efficient publicly useful facility that makes sense of the billions of documents, images, and other works on the Internet. That's a compelling argument for finding Google's use fair. So the court needs to explain it in terms of the four factors. No problem...
The situation Band describes involving the use of journal articles by students in the classroom does not, in my opinion, offer such a compelling argument, (in other words, a judge is not likely to feel compelled to accept this as a fair use), and if the judge is not compelled to find the use fair, he will have no need to explain the use in terms of its being transformative. So it won't be transformative. The fair use test is just so malleable...
Jon does suggest other uses that might be transformative, uses that more creatively embed an existing work in a new context, rather than just reproduce it for reading by thousands of students. These offer more to think about in terms of pushing the boundaries of fair use back to a healthier position, but at a school as large as mine, the implications for decision-making of a process requiring such subtle analyses are profound.
I think fair use cases make the most sense if you look at them from the perspective of which litigant had/has compelling need on their side (I am such a pragmatist). Creative uses often make for very compelling cases (except for Koon's first case, Rogers v. Koons, and the entire music industry). So do scholarly criticism and commentary (the recent Shloss case that settled). So do search engine cases. But schools refusing to license databases of articles, well I guess it could happen, but I wouldn't put my money on it.
Jon and I don't disagree on much, and I very much appreciate his doing us the big favor of bringing these three cases together in one article, emphasizing the role that the courts are playing to strengthen fair use in creative contexts. This is tremendously good news and I am very happy to see this development. Where we in higher ed take these arguments remains to be seen. But we should wholeheartedly celebrate the rolling back of the relentless shrinking that seemed to be the future for fair use just a few years ago. I look forward to further developments in this area.
