The recent flurry of activity in the copyright infringement lawsuit brought by publishers against Georgia State University has focused attention – mine, at least – on the “Fair Use Checklist” that has been adopted for use in quite a number of college and university copyright policies. As part of the mini-controversy over the naming of Dr. Kenneth Crews from Columbia University as an expert witness for the trial, the plaintiffs have objected that Dr. Crews, as a co-author of the checklist that is part of GSU’s new policy (see a previous post on this topic here) cannot be an impartial witness. In one sense this seems an odd objection, since experts are hired by each side in a lawsuit precisely because thy favor the position taken by the party that hires them, but it also offers a chance to reflect on the use and misuse of the fair use checklist and to begin to explain publishers’ ambivalent attitude toward it.
There are two obvious problems with the checklist, it seems to me. First, it can encourages a falsely mechanical view of fair use, where a “score” of seven pro versus six con, for example, means something is definitely fair use, while a one-digit reversal means it is not. That, of course, is not how fair use really works, and no score card can actually predict the results of a judicial evaluation of the fair use factors. Second, the checklist would be pretty easy to manipulate so that it tends toward the result someone is seeking. There has been some discussion, for example, about whether or not there needs to be an equal number of check boxes on each side (favoring fair use v. disfavoring fair use) in order for the checklist to itself be fair. Although this seems plausible, it is important to remember that courts have not necessarily articulated an equal number of circumstances to be considered on each side of the argument, and the checklist seeks to guide its user through the considerations that are actually in play, not some artificial list created without regard to case law for the sake of balance.
Against these two problems, both of which can be quite real, there are also a couple of sound reasons for using the checklist. First, the very mechanical nature that makes it an imperfect tool also makes it one that can be used quickly and without an entire course in copyright law by staff and faculty. These are the major groups that need to make fair use decisions day in and day out; the checklist is a way to at least be sure that they think about all of the factors that are relevant. There are many people on college campuses that seem to believe that any educational use is a fair use, and the checklist helps counter that simplistic belief and remind all of its users of the full-range of necessary considerations. Second, the checklist provides documentary evidence that a full fair use analysis was undertaken. Since part of the “remedies” section of the copyright act gives college and university employees partial protection from damages for infringement when they make a good faith fair use decision, even if they turn out to be wrong, evidence of detailed analysis helps protect the institution from potential liability.
These two arguments in support of using a checklist may help explain the ambivalence that the publishers have shown toward its use. The Association of American Publishers has announced support for several university policies that include the checklist, including Cornell’s and Syracuse’s, but they have lately seemed more hostile towards it. It is easy to see why, really. On the one hand, it is in publisher’s interest to have university employees get beyond a simplistic view of fair use, which is usually too generous, and look more closely at the full range of considerations that need to be taken into account (this explains, I think, the use of a version of the checklist by the Copyright Clearance Center as well). On the other hand, that deeper consideration will, itself, make universities less attractive targets for litigation, which seems to be the chosen weapon in the battle to narrow educational fair use.
I have to admit that I too feel a good deal of ambivalence toward the checklist, albeit for somewhat different reasons. I would like every staff and faculty member who must make fair use decisions to have a complete and nuanced view of the doctrine they are applying. But I recognize how impossible that is. Until our campuses are populated entirely by IP lawyers (may that day never come!), I will continue to believe that the fair use checklist is a highly imperfect, but even more highly necessary, tool for navigating the traitorous waters of contemporary fair use.
Kevin, I should note that Cornell’s Fair Use checklist was developed after we developed and issued a policy regarding the use of copyrighted materials in the classroom. It was not reviewed by the AAP, and I doubt they would agree with it (since they seem dead set on ignoring the plain letter of the law that allows for “multiple copies for classroom use.” Instead our Counsel’s Office adapted the checklist for precisely the pragmatic reasons you articulate in your post.
On a slightly different matter, I have never understood why the role of agency isn’t more important in the ereserves discussions. Publishers I believe view libraries as potential competitors in the distribution of copyrighted works. I like to start with the faculty member, who assigns a chapter to be read. I assume that telling students to read a chpater is not a copyright violation. When the student goes to the library and makes a copy of that chapter for her use, I also assume that her use would be a fair use. So why, when the library tries to make education more efficient by having a copy of that article on a reserves system for the student to print out (and also saving the wear and tear on the original volume), does this suddenly become a potential copyright infringement? The end result is the same: the student gets a copy of the chapter.
Kevin,
Thanks for this interesting post. I definitely have a love-hate relationship with the checklist. When a typical academic tries to use it, s/he almost always decides that a use is fair. The list has to be considered in conjunction with the institutional copyright policy as well as some basic knowledge of how to fill it out. For example, a faculty member was convinced that a copyrighted image published in a book was a “small portion of the work” because it was printed on only one page of a rather hefty tome … I am frustrated with what I sometimes consider an almost willful ignorance on the part of the faculty member who wants to reproduce a copyrighted work (over and over) and always call it a fair use.
The part of the list that really bugs me is having to characterize the nature of the copyrighted work. Aren’t a lot of non-fiction works also highly creative? I need more education in this myself!
I guess the need for lots more education translates to lots of work for people like us for years to come!!
I don’t think it’s irrational to expect users to come to rational and sound decisions about fair use, if they understand the basic logic. The problem has been that people don’t understand how their own user/creative community interprets the law. The codes of best practices in fair use developed through the Center for Social Media and the Program for Information Justice and Intellectual Property at American University (centerforsocialmedia.org/fairuse), which have been created by communities of creation and use with a legal advisory board, have been extraordinarily successful at determining these interpretations and freeing people to employ their good judgement. This has been far more effective throughout the fields served than a checklist-style “four factor” analysis on an individual basis, partly because the “four factor” analysis is difficult to interpret responsibly and partly because, as you say, the checklist is both mechanical and potentially limiting and partly because the community judgment is powerful added information in court, should it come to that, and therefore it is a powerful lowering of any individual’s risk. Scholars in various fields have created codes of best practices in fair use; film scholars’ is about to go up at cmstudies.org. (Their teaching fair use best practices is already up.) Communications scholars are doing the same, and will be ready, if all goes well, by next May. Dance archivists have created one to guide them with standards for employing fair use in museums, archives and exhibition spaces.
If a professor wants to use a material – it will be used. This is whether or not it’s through e-reserves, they post it to blackboard themselves, they put the book on physical reserve or hand the copy out in class.
Since all of us work in libraries and clear materials for our respective universities I think that what passes through our radar is only what we are responsible for. Yes, some professors use the same material over and over again. The law doesn’t state when it stops becoming fair use. IS REPEAT USAGE A VIOLATION OF FAIR USE?
A checklist is a good way for people to quickly see if something falls into the category of fair use, but as we all know nearly every material used can become a special case.
I appreciate your words of wisdom Kevin, as well as your comments Peter and Sarah.
Thanks for your article.
At the K-12 level, we have perhaps an overly simplified approach. Perhaps it’s time for a global, overly-simplified approach to copyright. At some point, and I think we might be there, the legal system will not be able to keep up.
I know many Gwinnett County private schools would benefit strictly in the classroom, which brings up another question: Should Fair Use be softer at lower academic levels?