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