On the Benefits and Limitations of Fair Use Checklists

     Throughout the academic year, members of a college or university community make decisions about the use copyrighted works for academic purposes.  Many will make informed and ethical decisions, but some may not.  For this reason, higher education institutions often develop subject guides and tutorials to provide users of information with a sound foundation in copyright law and its applications to teaching and learning.  Beyond this, many colleges and universities have adopted the practice of developing a fair use checklist for to students and faculty members to consult when they have to make fair use decisions.  A fair use checklist, however, should serve as a help and not as a replacement for a thorough analysis in every instance where a protected work is copied under the fair use doctrine.  This is one lesson we can draw from the recent 11th Circuit case of  Cambridge University Press, et al. v. Carl V. Patton. 

     Properly used, a checklist is a device that helps the user work through a series of considerations in a orderly manner that does not leave out anything important.  This is why checklists are so useful in medicine and aviation, for example.  When copyright law provides a specific exception to copyright protection such as the first sale doctrine [17 U.S.C. Sec. 109], which under most circumstances permits the purchaser of a particular copy of a copyrighted work such as a printed book to sell or give the item away, the owner of the item does not need to perform any special analysis before exercising the right granted under the exception.  Absent a specific exception under copyright law or actual permission from the copyright owner, the fair use doctrine provides information users with an effective tool with which to consult the creative works of others ant to continue the development and flow of ideas.  The fair use doctrine, however, is also intended to give creators enough of an incentive to continue developing creative new works by protecting their existing works and the market for these works.  To accomplish this purpose, the fair use doctrine [17 U.S.C. Sec. 107] requires that the user consider the following four factors to determine if the intended use of the work is a fair one: (1) the purpose and character of the use, including whether such use is of commercial or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for, or value of, the copyrighted work (U.S. Copyright Office, 2014).  Fair use checklists have been adopted as a best practice by many higher education institutions as way to make sure that the balancing process required by the fair use doctrine takes place in every instance where a user relies on the doctrine to copy a protected work.

     Georgia State University (GSU) adopted a fair use checklist in February 2009 as a key element of an improved copyright policy following the April 2008 complaint by Cambridge University Press, Oxford University Press, and Sage alleging copyright infringement arising from the posting of copyrighted works on the GSU's electronic reserves system.  GSU's fair use checklist was modeled on a checklist used at Columbia University and developed jointly by Cornell University and the Association of American Publishers (AAP).  The Court in Cambridge University Press, et al. v. Carl V. Patton identified several universities that have also adopted fair use checklists.  In using these fair use checklists faculty members are generally asked to fill out a fair use checklist form and sign it for each protected work or portion of a work they intend to post on an electronic reserves system.

     The failure identified by the 11th Circuit Court, in the use of fair use checklists in the lower court's analysis, was that the checklist was often used in a mechanical way and that each of the four factors was equally weighed even though some factors such as the substantiality of the part used and the impact on the market for the item should have weighed more heavily in light of the overall circumstances.  In short, checklists are good, but they should be used taking care not to gloss over the application of the fair use factors.

     Below are links to the representative fair use checklists, most of which are referenced in the Cambridge University Press, et al. v. Carl V. Patton opinion:

• Georgia State University
• Columbia University
• Cornell University
• Duke University
• Florida State University
• University of Minnesota
• Louisiana State University

     Cambridge University, et al. v. Carl V. Patton may result in further appeal.  Additionally, higher education institutions in federal circuits other than the 11th Circuit are not bound by the court's holding and rationale.  Nevertheless, this case provides an instructive application of fair use and the role and shortcomings of fair use checklists.  

References
 

Cambridge University Press, et al. v. Carl V. Patton, No. 12-14676 (11th Cir.
     October 17, 2014). 

U.S. Copyright Office (2014) Reproduction of copyrighted works by educators and 
     librarians (Circular 21). Washington, D.C.: U.S. Copyright Office. Retrieved from
     http://www.copyright.gov/circs/circ38a.pdfcirc21.pdf

Global Context of Copyright Law

     Those handling copyright matters for a college or university do well to become familiar with the application of copyright law across borders.  Faculty may find themselves collaborating with foreign nationals on research, writing, or even teaching.   There is no single international body of law that governs all situations (U.S. Copyright Office, 2014).   The sources of law in a global context are international conventions and bilateral treaties.  International conventions are multilateral treaties among several countries whereas bilateral treaties are between two countries.  In either case, the treaty needs to have been ratified by the U.S. Senate to become valid.    

     This blog post identifies some of the more important copyright conventions adopted by the United States.  Then, using Australia as an example, it will examine Australian copyright law and how works by U.S. authors are protected in that country.   The treaties identified here remain in force, but the earlier ones have been largely replaced by the later treaties entered into by most of the same parties.  A key concept in most copyright conventions is “national treatment”, the promise that a country will extend to the copyrighted works of member countries the same protections given to domestic copyrighted works.

Convention on Literary and Artistic Copyrights, Aug. 11, 1910, 38 Stat. 1785, TS 593.  Known as the Buenos Aires Convention of 1910, this agreement among the United States and several Latin American Countries provided that member countries would recognize each other's copyrighted works provided these works carried a notice stating "all rights reserved" or a similar statement.  

Universal Copyright Convention, July 24, 1971, 25 UST 1341, TIAS 7868.  Member countries agreed to extend national treatment to each other's copyrighted works provided the work bears the symbol for copyright "©", followed by the date of first publication, and the name of the copyright owner. 

Berne Convention (with appendix) for the Protection of Literary and Artistic Works, July 24, 1971, 102 Stat. 2853, 828 UNTS 221.  Under the Berne Convention, member countries accord national treatment to copyrighted works from fellow member countries.  The Berne Convention requires neither notice nor markings such as the copyright symbol to extend copyright protection to a work.  It requires that member countries extend protection to works from other member countries for the lifetime of the author plus 50 years. 

WIPO Copyright Treaty, December 20, 1996, 36 I.L.M. 65, U.S. Senate Treaty 105-17.  Managed by the United Nation's World Intellectual Property Organization (WIPO), the WIPO Copyright Treaty extended national treatment by member nations to digital works such as computer programs and original compilations of data and sound recordings.  It also required that member countries enact legal protections and remedies against the circumvention of technologies designed to protect against unauthorized copying.  This prompted the enactment in the United States of the Digital Millennium Copyright Act codified at 17 U.S.C. §§ 1201-1204.  The WIPO Copyright Treaty was passed with a companion treaty, WIPO Performances and Phonograms Treaty, which extends to performance and production rights in a digital environment.  

 

U.S. Copyright Relations with Australia

     In examining cross-border copyright protection, whether it involves the rights of foreign nationals in the United States or the protection of works by United States citizens abroad, one will want to examine whether the foreign country is a member to a copyright convention with the U.S.  It is also important to determine whether the United States has a bilateral treaty with that country.  U.S. Copyright Office Circular 38A provides a convenient guide to copyright agreements in place between the United States and other countries (U.S. Copyright Office, 2014).  The State Department’s Treaties in Force provides a comprehensive listing of conventions and treaties the United States is a party to with other countries on all subject areas (U.S. State Department, 2013).

     U.S. Circular 38A lists Australia as a party to the following agreements conventions and treaties: Bilateral treaty with the United States, March 15, 1918, the Berne Convention (Paris), the Universal Copyright Convention (Geneva), Phonograms, the World Trade Organization Treaty, the WIPO Copyright Treaty, and the WIPO Performances and Phonograms Treaty.  In addition to being a party to these treaties and conventions, Australia entered into an Agreement on the Establishment of a Free Trade Area with the United States, which became effective January 1, 2005 and which further developed bilateral copyright relations between the two countries.  Based on these agreements, both Australia and the United States extend national treatment to each other’s copyright protected works.  National treatment, under Australian law would be those rights secured under the Copyright Act (Copyright Act, 1968).

     The Copyright Act is more prescriptive than United States copyright law.  It secures rights of copyright holders and identifies specific exceptions.  Rather than providing a general fair use exemption, sections 40 through 42 of the Copyright Act provide "fair dealing" provisions allowing exemptions for purposes of research and study; review and criticism; reporting the news; legal advice; and parody and satire, all of which are specific and limited.  The law provides for a system of statutory license collecting societies, which are authorized to operate a centralized rights management system that facilitates the collection of royalties (Alexander & Fraser, 2014).

      As part of an effort to make Copyright Act easier to understand, more concise, more adaptable changing technologies, and more in line with the global copyright environment, the Australian Law Reform Commission completed an extensive study of copyright law practice in Australia in 2014 and prepared ALRC Report 122 recommending several reforms for consideration by the Australian Government (George, 2014).  The most controversial component of the recommended reform is a provision that would replace the Copyright Act’s fair dealing provisions with a broader fair use exception tracking that codified in the U.S. Copyright Act of 1976 (17 U.S.C. §107).  The Australian fair use provision, if adopted, would evaluate the nature and purpose of the use; the nature of the copyright material; the amount and substantiality of the part used; and the effect of the use on the market (Alexander & Fraser, 2014). 

      Even though United States and Australian copyright laws differ in several details, American copyright holders can expect to receive national treatment in Australia, which translates into many of the basic protections offered by United States copyright law.  Additionally, reforms under consideration in Australia may well result in even greater similarities.   

 

 

References

Alexander, I., & Fraser, M. (2014). Copyright reform in Australia: Asking the right questions. Journal of Media Law, 6(1), 8-20.

 

Australian Law Reform Commission. (2014). Copyright and the digital economy (ALRC Report 122). Sydney, Australia: Commonwealth of Australia. Retrieved from http://www.alrc.gov.au/publications/copyright-report-122

 

Copyright Act 1968 (Cth) (Austl.). Retrieved from http://www.comlaw.gov.au/Details/C2014C00291

 

George, A. (2014). Reforming Australia’s copyright law: An opportunity to address the issues of authorship and originality. University of New South Wales Law Journal, 37(3), 939–971.

 

Schwabach, A. (2007). Intellectual property: a reference handbook. Santa Barbara, Calif: ABC-CLIO, Inc.

 

U.S. Copyright Office (2014) International copyright relations of the United States (Circular 38A). Washington, D.C.: U.S. Copyright Office. Retrieved from http://www.copyright.gov/circs/circ38a.pdf

 

U.S. Department of State (2013) Treaties In Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 2013. Washington, D.C.: United States Department of State.  Retrieved from http://www.state.gov/documents/organization/218912.pdf