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492 LIMITATIONS ON EXCLUSIVE RIGHTS: FAIR USE
MDS does not “exploit” copyrighted material within the meaning of Harper & Row,
because its fee does not turn on the content of the materials, copyrighted or not, that it
copies. It does not, of course, select the materials to be copied or determine the amount to
be excerpted. The business of producing and selling coursepacks is more properly viewed
as the exploitation of professional copying technologies and the inability of academic
parties to reproduce printed materials efficiently, not the exploitation of copyrighted,
creative materials. We hold that the Copyright Act does not prohibit professors and students
who may make copies themselves from using the photoreproduction services of a third
party in order to obtain those same copies at less cost.
Thus, the coursepacks fit within the exception to the “transformative” quality requirement,
and the predominant character of the use of excerpts in coursepacks is not commercial
but “nonprofit educational.” The first factor therefore favors a finding of fair use.
B.
The second fair use factor, “the nature of the copyrighted work,” 17 U.S.C.
§ 107(2), recognizes that fair use is more difficult to establish when the work being used
is at “the core of intended copyright protection.” Campbell, 114 S.Ct. at 1175. Factual
compilations, such as telephone book listings, with only a small element of creativity and
originality may be used more freely than creative works. Feist, 499 U.S. at 348–51. The
materials copied in this case are much closer to the core of work protected by copyright
than to the mere compilations of raw data in the phone books in Feist. The excerpts used
in the coursepacks are substantially creative, containing original analysis and creative
theories. Although some of the copyrighted works contain non-original material not
protected by copyright, each excerpt contains far more than the “minimal degree of
creativity” that qualifies it as “independently created by the author” and therefore
original. Id. at 344–48.
The fact that the excerpts in this case are extracted from works that may be
categorized as “non-fiction” does not mean that any use is fair use. Rather, monopoly
protections accrue “equally to works of fiction and nonfiction.” Harper & Row, 471 U.S.
at 546. Copyright protections are intended to induce the creation of new material of
potential historical value, not just fictional works, and therefore extend to the excerpts
here at issue.
The second factor, on these facts, does little more than confirm that the works at
issue are protected by copyright and may only be used “fairly.” Thus, the fair use
examination properly proceeds to evaluate factors three and four to determine whether
this use of the excerpts is fair.
C.
The third factor considers “the amount and substantiality of the portion used in
relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). In the context of a
musical parody’s use of a copyrighted song, the Supreme Court interpreted this factor to
inquire whether the quantity and value of the materials used were reasonable in relation
to the purpose of the copying, noting that “the extent of permissible copying varies with
the purpose and character of the use.” Campbell, 114 S.Ct. at 1175. As the Supreme Court
acknowledged, “[t]he facts bearing on this factor will also tend to address the fourth
[factor, which evaluates market effect], by revealing the degree to which the parody may
serve as a market substitute for the original or potentially licensed derivatives.” Id. Thus,
we ask whether such substantial portions of a copyrighted work were used that a
coursepack is “composed primarily of [the] original, particularly [the original’s] heart,