13.14 A new fair use exception is proposed in Chapter 4. That some educational uses may be fair is clear from the US fair use provision. The US fair use exception twice refers explicitly to education. The preamble includes, as an illustrative purpose, ‘teaching (including multiple copies for classroom use), scholarship, or research’. Furthermore, the first of the four fairness factors in the US provision is the ‘purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes’.
13.15 In a recent US cases that involved making copies of excerpts of copyrighted works for teaching students and for scholarship, a US District Court considered this first fairness factor and stated that the ‘language of s 107 itself and the Supreme Court’s opinion in Campbell compel the decision that the first fair use factor favors [the defendant university]’. The Court distinguished commercial copying held not to be fair in other cases, and the ‘purely nonprofit, educational purposes’ of the university. It also noted the importance of the transformative nature of a use, but cited the statement of the Supreme Court in Campbell that the ‘obvious statutory exception to this focus on transformative uses is the straight reproduction of multiple copies for classroom distribution’.
13.16 Precisely which educational uses would be held by a court to be fair use is an important question. Fair use should be considered on a case by case basis. The ‘fact of a nonprofit educational purpose does not automatically ensure fair use’ as other factors are important. This flexibility is one of the main benefits of fair use, particularly in a changing digital environment. Although this Discussion Paper does not come to conclusions about exactly which educational uses are likely to be held by courts to be fair use, it is instructive to consider perspectives on which educational uses might be fair.