For our final blog post of the week we are honored to welcome Dr. Matthew Rimmer.  Dr. Rimmer is an Australian Research Council Future Fellow working on Intellectual Property and Climate Change. He is an associate professor at the ANU College of Law and an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA). 

 

The Fight for Fair Use in Australia: Copyright Law in an Age of Cloud Computing

 

Fair Use Week has celebrated the evolution and development of the defence of fair use under copyright law in the United States. As Krista Cox noted, ‘As a flexible doctrine, fair use can adapt to evolving technologies and new situations that may arise, and its long history demonstrates its importance in promoting access to information, future innovation, and creativity.’ While the defence of fair use has flourished in the United States, the adoption of the defence of fair use in other jurisdictions has often been stymied. Professor Peter Jaszi has reflected: ‘We can only wonder (with some bemusement) why some of our most important foreign competitors, like the European Union, haven’t figured out that fair use is, to a great extent, the “secret sauce” of U.S. cultural competitiveness.’ Jurisdictions such as Australia have been at a dismal disadvantage, because they lack the freedoms and flexibilities of the defence of fair use.

1.         The Australian Law Reform Commission

There has been much angst that Australia has adopted features of United States copyright law – such as aspects of the Sonny Copyright Term Extension Act 1998 (US) and the Digital Millennium Copyright Act 1998 (US) – without the countervailing benefits of a flexible defence of fair use. As Adam Turner lamented, ‘Why did we gain the restrictions of US copyright law but not the rights?’

As it stands, Australian copyright law does not provide for a general defence of fair use. Instead, Australian copyright law has purpose-specific defences of fair dealing for criticism and review, research and study, reporting the news, use in judicial proceedings, and parody and satire.

In February 2014, the Australian Law Reform Commission led by Professor Jill McKeough released its groundbreaking report on Copyright and the Digital Economy. The two-year-long law reform project was an independent, fair-minded piece of research, showing wide community consultation and industrious research into the case law and the literature on the topic. The report recommended a number of simplifications and revisions to the Australian copyright regime, so that it would be better suited for an age of broadband and cloud computing.

The report recommended that ‘The Copyright Act 1968 (Cth) should provide an exception for fair use.’ The Commission emphasized:

Fair use also facilitates the public interest in accessing material, encouraging new productive uses, and stimulating competition and innovation. Fair use can be applied to a greater range of new technologies and uses than Australia’s existing exceptions. A technology-neutral open standard such as fair use has the agility to respond to future and unanticipated technologies and business and consumer practices. With fair use, businesses and consumers will develop an understanding of what sort of uses are fair and therefore permissible, and will not need to wait for the legislature to determine the appropriate scope of copyright exceptions.

The Commission suggested that the report would make Australia attractive to entrepreneurs, inventors, and start-up companies working in the field of information technology: ‘Of course, innovation depends on much more than copyright law, but fair use would make Australia a more attractive market for technology investment and innovation.’ In particular, a defence of fair use would be of benefit and assistance to search engines, social networks, cloud computing, and 3D printing.

The Commission stressed: ‘Fair use promotes what have been called ‘transformative’ uses—using copyright material for a different purpose than the use for which the material was created. This is a powerful and flexible feature of fair use’. The Commission noted that the defence ‘can allow the unlicensed use of copyright material for such purposes as criticism and review, parody and satire, reporting the news and quotation.’ The Commission recognised: ‘Many of these uses not only have public benefits, but they generally do not harm rights holders’ markets, and sometimes even enlarge them’. The Kookaburra case [PDF] has highlighted limitations of current Australia copyright law – where Men at Work’s quotation of a Girl Guides song was considered to be a copyright infringement.

Moreover, the Commission observed that the defence of fair use would also address a range of other copyright uses: ‘Fair use is also an appropriate tool to assess whether other transformative uses should be permitted without a licence, such as data mining and text mining, caching, indexing and other technical functions, access for people with disability, and a range of other innovative uses.’ The Commission stressed: ‘Copyright must leave ‘breathing room’ for new materials and productive uses that make use of other copyright material.’

In an age of Mickey Mouse copyright term extensions, the defence of fair use would be particularly helpful in dealing with the problem of orphan works – where the owner is lost or cannot be located. The Australian Law Reform Commission ‘considers reforms that would facilitate the use of orphan works to enable their beneficial uses to be captured in the digital economy, without creating harm to the copyright holder.’

The issue of disability discrimination has been a pernicious problem in Australian copyright law. Professor Ron McCallum from Sydney Law School has eloquently discussed the difficulties of access to cultural works for those with disabilities in Australia:

The Australian Law Reform Commission recommended ‘that access for people with disability should be an illustrative purpose listed in the fair use exception.’ Such a proposal is to be welcomed, particularly in light of the new World Intellectual Property Organization Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled 2013.

The Australian Law Reform Commission also counselled against confusing or conflating fair use with copyright infringement: ‘Piracy will be no less criminal if fair use is enacted.’ The Commission commented: ‘If a person is prepared to infringe copyright laws by illegally sharing films with strangers over peer-to-peer networks, that person will presumably have little regard to laws that prohibit digital-to-digital copying of films for purely private use.’ The Commission concluded that their proposals would not undermine the rights of copyright owners.

2.         The Coalition Government

The Attorney-General of the Coalition Government – George Brandis – has been hostile to the proposals of the Australian Law Reform Commission with respect to copyright exceptions. Tabling the report, the Attorney-General observed: ‘These recommendations will no doubt be controversial and the Government will give them very careful consideration.’ He stressed: ‘We are particularly concerned to ensure that no prejudice is caused to the interests of rights holders and creators, whether the proposed fair use exception offers genuine advantages over the existing fair dealing provisions and that any changes maintain and, where possible, increase incentives to Australia’s creative content producers.’ Brandis maintained that ‘those who create the great Australian films, the great Australian television dramas, the great Australian albums, depend upon robust intellectual property laws to protect their creative endeavours’. He feared: ‘Without strong, robust copyright laws, they are at risk of being cheated of the fair compensation for their creativity, which is their due’. Brandis took a copyright maximalist position in the debate over copyright law reform: ‘As I know from my many discussions with members of the industry, they are looking to the Government to ensure that their interests are protected, and this, the Government will do.’

In a speech at the National Library of Australia [PDF], the Attorney-General commented: ‘I remain to be persuaded that [the adoption of a fair use defence] is the best direction for Australian law, but nevertheless I will bring an open and inquiring mind to the debate.’ He signalled his dissatisfaction with the High Court of Australia decision in Roadshow v. iiNet. Brandis instead voiced his enthusiasm for stronger copyright enforcement measures, such as graduated response schemes and three-strikes policies for Internet users. Citing Baz Luhrmann’s film The Great Gatsby, Brandis commented:

The Great Gatsby, Australia’s most successful film at the local box office last year, is now centre stage after its haul of 13 AACTA Awards and an Oscar nomination. Unfortunately the success achieved by The Great Gatsby can lead to piracy of the film, placing the sustainability of our screen industry at risk.

One area for potential reform of this problem may be section 101 of the Copyright Act. This provision provides that an entity which authorises the infringement of copyright without the copyright owner’s permission is liable for that infringement.

He maintained: ‘The government will be considering possible mechanisms to provide a legal incentive for an internet service provider to co-operate with copyright owners in preventing infringement on their systems and networks.’ Brandis commented: ‘This may include looking carefully at the merits of a scheme whereby ISPs are required to issue graduated warnings to consumers who are using websites to facilitate piracy.’ Such an approach is controversial – given the dismal history of graduated response schemes in jurisdictions like New Zealand.

The Coalition Government has also supported the adoption of the Trans-Pacific Partnership. The intellectual property chapter of the Trans-Pacific Partnership would provide for longer and stronger protection of copyright in Australia – and also limit the range of copyright exceptions permissible for participating countries. The investment chapter of the Trans-Pacific Partnership would allow for copyright owners to challenge government reforms in respect of copyright law, IT pricing, and e-commerce.

The commentator, Stilgherrian, wondered whether the proposals of the Attorney-General were well-adapted to the digital age. He lamented: ‘Apart from some results from the so-called iiTrial (which he rejects) and the aforementioned ALRC report (which he rejects), Brandis’ speech bases most of its understanding of modern, digital copyright law on the words of Lord Thomas Macaulay and Charles Dickens — that is, from 1841 and 1842, respectively.’

The technology journalist Josh Taylor perceptively noted that Roadshow – the owners of The Great Gatsby – had made generous donations to both the Coalition Government and the opposition, the Australian Labor Party: ‘An analysis by ZDNet of the annual donor returns listed on the Australian Electoral Commission (AEC) of reported donations to the political parties shows that since 1998, Village Roadshow has donated close to AU$4 million in total to the Labor and Liberal parties both federally and in the state branches.’ This investigative piece of journalism raises concerns as to whether Roadshow is seeking to rewrite Australian copyright law.

Economist Peter Martin emphasized that simplicity and fairness will aid innovation. He pleaded with the Attorney-General to develop a flexible defence of fair use for Australia: ‘As a deregulationist [Brandis] knows that simple rules are often the best. It’s time for simple rules.’

Dr. Nicholas Suzor has noted that consumers should not be treated like pirates: ‘The most important thing fair use does is help distinguish “piracy” from what ordinary consumers and creators do all the time.’

Angela Daly has questioned the merits of a three-strikes system in Australian copyright law.

 

3.         The Australian Labor Party

In response, Jason Clare MP, the Shadow Minister for Communications for the Australian Labor Party, noted that the Australian Law Reform Commission had made a number of compelling arguments. He noted: ‘It’s the countries that best adapt to digital disruption that will be the most innovative, most productive, the wealthiest and the most successful.’ He observed that a trip to the Silicon Valley had ‘opened my eyes to the need to look at this very seriously and make sure out laws are up to date with the needs to create a vibrant digital economy.’

Ed Husic MP, the Member for Chifley, has been an advocate for copyright law reform, particularly in respect of consumer rights and IT pricing. He was critical of the proposals of the Attorney-General.

The recommendations are going to be facing an uphill battle. It looks like the shutters are pretty much being drawn down. Copyright is being used as a form of quasi-protectionism. The way that it is being applied is designed to maintain revenue as opposed to encouraging innovation.
We’ve heard a lot about piracy today. Clearly pirates have had a very emotionally scarring experience on Coalition ministers — they dedicated a lot of time to it today.

Husic has championed the adoption of recommendations of the IT Pricing Inquiry – including the adoption of a defence of fair use.

Tim Watts MP, the member for Gellibrand in the House of Representatives, called upon his party, the Australian Labor Party, to be ‘the Promethean party—the bearers of the fires of political change.’ He lamented in his first speech that ‘Australian copyright law, in which all reproduction is prohibited—other than specific, narrow exceptions—is particularly problematic and is currently throwing sand in the gears of digital innovation in this country.’ Watts maintained: ‘In the absence of a broadbased fair-use exception, innovations like the Google search engine and the iPod were legally problematic under Australian law upon introduction — chilling incentives for digital innovation in this country’. He also highlighted that maker communities and 3D printing may be the subject of litigation by intellectual property trolls.
In February 2014, Tim Watts MP commented on the Australian Law Reform Commission report on Copyright and the Digital Economy: ‘For copyright reform advocates such as myself, the report is a landmark moment in the journey towards a copyright law that will help, not hinder, Australia’s digital economy’. He supported the adoption of a defence of fair use in Australia:

Watts emphasized: ‘A copyright regime that permits innovation is required to attract the companies and communities that will make Australia a leader in the digital century ahead.’ He stressed: ‘Many online communities often transform other’s copyrighted work by adding new uses for data or by creating completely new artistic works through what US academic Lawrence Lessig calls “remix culture”.’ Watts was of the view that ‘Such an active relationship between content creators and their audiences should be celebrated, not punished, so long as these new uses are not unfair, considering a range of explicit considerations.’

It remains to be seen what the Australian Labor Party’s overall stance will be on copyright law, fair use, and the digital economy.

 

4.             The Australian Greens

For the Australian Greens, Senator Scott Ludlam has been a staunch advocate of the introduction of a defence of fair use into the Australian Parliament. He was the sponsor of a bill on the subject – the Copyright Legislation Amendment (Fair Go for Fair Use) Bill 2013 (Cth). Ludlam argued that ‘Australian copyright law is out of date, inflexible, unnecessarily complex, imbalanced and virtually blind to digital communication technology such as smartphones used by three out of four Australian adults.’ He noted that 2006 reforms to the copyright act had been outdated: ‘While the law caught up with the video age eventually, advances in technology have served to make our laws nonsensical once again.’

Ludlam has advocated the adoption of a United States model of a defence of fair use:

A Fair Use reform would shift Australian law to the US model. Such a technically neutral doctrine would allow the law to respond to developments in technology, with the acceptability of new uses of content and technology determined when a dispute arises. In the Australian system, every new use or technology is forbidden until Parliament gets around to saying otherwise. Under the fair use model, decisions are not made on specific technology through legislation but on the nature and market effect of use of copyright works. A Fair Use doctrine allows people developing new technologies or those who are reproducing and transforming culture to make an assessment about whether their use is fair, and, if they are challenged, they have to defend their use or negotiate terms with the copyright holder. The alternative is a less flexible rule-based system where people with existing lobbying power may have an undue advantage in achieving new exceptions.

For the Australian Greens, Ludlam concluded that ‘Copyright reform is needed to remove discriminatory barriers that impact the visually impaired or force Australians to pay more for no good reason, to protect our learning and cultural institutions and provide fair rules, fair process and fair opportunities to defend use of copyrighted material.’ He noted: ‘Australian laws cannot continue to migrate assumptions about copyright from the printed or analogue age which is rapidly passing as we enter the digital age.’

Senator Ludlam has also been suspicious of the Trans-Pacific Partnership, with its proposals with respect to intellectual property and investment.

5.         Civil Society Responses

The consumer rights’ group CHOICE Australia has promoted the adoption of a defence of fair use. ‘If you set out to design a law that consumers would inevitably and unknowingly break, in their millions, every day, the Australian Copyright Act would be what you would end up with’ said CHOICE CEO Alan Kirkland. ‘Despite being updated in 2006, our current copyright law fails to even address basic technologies like DVDs, let alone emerging areas such as cloud computing.’ CHOICE Australia has led a petition against the adoption of a three-strikes response to copyright infringement.

Electronic Frontiers Australia called for the prompt introduction of a defence of fair use under copyright law. Chair, Dr. Sean Rintel, commented: ‘EFA believes that the introduction of a broad fair use exception into Australian copyright law is a critical and long-overdue element in providing a strong, relevant and flexible copyright regime that will serve Australia well into the future. A broad fair use exception will enable greater innovation and creativity, will promote a higher degree of respect for copyright among Australian consumers and will remove a number of significant impediments to the development of a vibrant and competitive Australian cloud services industry.’

The Electronic Frontier Foundation observed: ‘Hopefully the government takes advantage of this critical moment to pass legislation that fosters innovation and creativity, instead of simply catering to legacy business interests.’

The Pirate Party Australia has become increasingly active in Australian politics. The Pirate Party supported the adoption of a defence of fair use: ‘The past twenty or so years we have adopted many of the negative aspects of the United States’ copyright system, but with few of the safeguards the American laws have’, commented Mozart Olbrycht-Palmer, Deputy Secretary of Pirate Party Australia. ‘While we increased our copyright term to life plus seventy years via the Australia-US Free Trade Agreement in the early 2000s, we did not import fair use as a flexible exception for using copyrighted material without a licence.’ The spokesman emphasized: ‘These reforms are long overdue and go a long way to ensuring that Australia has copyright laws that genuinely reflect the needs of our society.’

The technology sector and the libraries and cultural institutions sector have also supported the introduction of a defence of fair use into Australian copyright law.

 

Conclusion

The Australian Law Reform Commission report on Copyright and the Digital Economy makes an important contribution to scholarship on copyright law and the defence of fair use. The study will inform both domestic deliberations over copyright law reform, as well as larger battles over the Trans-Pacific Partnership. The report is a thoughtful, independent, rigorous, and perceptive piece of work, which will set agenda with respect to copyright law in Australia. The Australian Law Reform Commission’s work will be the catalyst for great academic, political, and community debate about the future shape and form of Australian copyright laws. The Attorney-General George Brandis has been dismissive of the proposals with respect to a defence of fair use under copyright law. He has instead shown a fondness for the highly controversial three-strikes proposal. A number of Australian Labor Party politicians – including Jason Clare, Ed Husic, and Tim Watts – have been sympathetic to the work of the Australian Law Reform Commission. Senator Scott Ludlam of the Australian Greens has campaigned upon the need for the adoption of the defence of fair use under copyright law. There has also been strong support from consumers, technology developers, and cultural institutions for the introduction of a defence of fair use in Australian copyright law. 2014 will see an almighty fight over the future of fair use in Australia.

Biography

Dr. Matthew Rimmer is an Australian Research Council Future Fellow working on Intellectual Property and Climate Change. He is an associate professor at the ANU College of Law and an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA). He holds a BA (Hons) and a University Medal in literature, and a LLB (Hons) from the Australian National University. Rimmer received a PhD in law from the University of New South Wales for his dissertation on The Pirate Bazaar: The Social Life of Copyright Law. He is a member of the ANU Climate Change Institute. Rimmer is the author of Digital Copyright and the Consumer Revolution: Hands off my iPod, Intellectual Property and Biotechnology: Biological Inventions, and Intellectual Property and Climate Change: Inventing Clean Technologies. He has co-edited Incentives for Global Public Health: Patent Law and Access to Essential Medicines, and Intellectual Property and Emerging Technologies: The New Biology. Rimmer has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, clean technologies, and traditional knowledge. His work is available here.

 

 

For our fourth entry this week, we are privileged to share the newest lecture on fair use from Professor William Fisher, the WilmerHale Professor of Intellectual Property Law at Harvard Law School and Faculty Director at the Berkman Center for Internet and Society.  This lecture is part of Professor Fisher’s CopyrightX course:  a twelve-week networked course, offered each Spring under the auspices of Harvard Law School, the HarvardX distance-learning initiative, and the Berkman Center for Internet and Society.  The course explores the current law of copyright and the ongoing debates concerning how that law should be reformed.  This particular lecture, which will be featured in week 9 of the class, is titled “Fair Use Today.”   Many thanks to Professor Fisher for sharing it ahead of the official class release.

 

For our third expert post this week, we are delighted to welcome Kenneth D. Crews.  Crews is an internationally recognized expert on copyright, libraries, and fair use.  He is currently Of Counsel to Gipson Hoffman & Pancione in Los Angeles, California, and an adjunct professor in the Columbia Law School in New York.

 

The Expanding Importance of Fair Use: Virtues and Dimensions for Future Needs

 

It seemed common not long ago for some critics to predict the demise of fair use.  Fair use was reviled as obsolete.  It was hopelessly obtuse and reserved for scoundrels who needed a last resort for salvation from infringement claims.  Even its advocates foresaw a dwindling role for fair use as licensing and pay-per-use mechanisms would become more prevalent. Balderdash.

The doctrine has never been as strong, versatile, and essential as it is today.  Fair use is of greater importance now than ever before.  It is a mainstay of creativity, and it is called upon by artists, publishers, Internet services, and players from a multitude of industries and perspectives.  Fair use has been at the center of debates involving derivative artworks, classroom readings, and mass digitization of millions of books.  In cases before U.S. courts in recent years, fair use has been asserted by creative artists and attacked by others.  Fair use has been claimed by publishers developing new books, and asserted by educators to share portions of copyrighted books for education.  Fair use has been preserved as a legal strategy when needed, and it has been deployed as a business model for creative industries.

Fair use, of course, always has been a legal principle, and it is built on an interpretation and application of the four factors in the statute.  Two very general developments are happening on that foundation: First, the law is being called upon to serve a wider variety of needs and circumstances; second, the resulting legal experiments with fair use are opening some welcome creative and economic opportunities with widespread benefits.

The escalating significance of fair use can be measured in multiple dimensions, from the legal definition to geographic outreach.

Geography

Fair use is a distinctly American doctrine in many respects.  It has some distant roots in British law, but it was coalesced in rulings from U.S. courts, starting in 1841 [PDF].  It became part of the U.S. copyright statutes in 1976.  While nearly every country has copyright exceptions of some form, fair use remained exclusively in the U.S. domain until just the last several years.  Other countries have discovered the compelling virtue of a flexible doctrine to serve unanticipated needs.  Occasionally, non-U.S. courts have devised creative doctrines, but those countries still lack the true benefits of fair use.  In recent years, several countries actually have introduced a four-factor test that is nearly identical to the American statute.  Fair use and similar doctrines are finding a home outside the United States in the laws of countries such as Israel, Korea, Singapore, and the Philippines (see Library Copyright Alliance, “How Flexibility Supports the Goals of Copyright Law: Fair Use and the US Library Experience” [PDF] p. 15)

Scope of Works and Media

Fair use never has been limited to certain types of works, but the early cases were typically about books and occasionally music.  New waves of cases have tested fair use for art, photography, advertising, motion pictures, and even Barbie dolls.  Cases have begun to define the parameters of fair use for digital technologies, software, databases, search engines, and much more.

Flexibility

Fair use also never has been limited to certain contexts.  It has substantive limits, but no boundaries of circumstance.  Fair use is ready to be tested as new technologies, new media, and new demands arise.  As the challenge of orphan works and mass digitization expand, fair use is ready as a resource for potentially alleviating some of the legal tension.  Fair use may not be the panacea, but it will always have a place in solving new copyright dilemmas and assuaging the interface between protection and innovation.

Relationship to other exceptions

A mainstay virtue of fair use is its independence of the other copyright exceptions.  The U.S. Copyright Act has more than fifteen statutory provisions that detail specific exceptions.  Regardless, fair use still applies.  If the provision on distance learning (Section 110(2)), for example, does not fit your needs, you still have the opportunity to test whether fair use might help.  Fair use is a separate and independent element of the overall equation in copyright that establishes rights of owners and tempers them with limits.  The same could be said about defining the public domain or simply seeking permissions from rightsholders.  Fair use is one of the alternatives for properly using works created by others.

Support for Creativity

Fair use may be a limit on the rights of copyright owners, but it is a critical boost for innovation and creativity.  It enables the next generation of talent to utilize and build on the creative works that came before.  It empowers each of us with an opportunity and a responsibility to engage with copyrighted works in a reasonable manner that may ultimately have social benefit.  New artwork can be built on existing materials.  Critical studies of film, painting, and literature can reproduce quotations and images to convey new insights.  Digitized text can be used to engage students in the classroom, to build search tools, and to reach readers with diverse forms of print disabilities.

Establishment of a Business Model

Fair use as a legal principle is conventionally cited as a defense.  But it is increasingly a basis for business modeling and strategic planning long before a legal challenge can arise.  Musicians are deciding (OK, probably with their lawyers in the room) whether to release a song that samples or derives from another.  Artists are routinely building on the works of others.  Book and newspaper publishers regularly decide whether to reproduce photographs and quotations.  Software developers rely on existing code.  Universities and libraries design and implement services for education and research based on policy planning about fair use.  Some of the largest companies in the world develop innovative search tools and other online services that inherently depend on a strategically constructed definition of fair use.  Whether the ultimate objective is cultural growth, scholarly research, or corporate profit, the strategy is the same: Is this activity within our best understanding of fair use, and are we prepared to move forward with our model and strategy despite potential conflict from the legal ecosystem?

Filling Volumes

Writings about fair use today fill volumes.  That fact alone is a testament to the growing significance of fair use.  It is a compelling doctrine.  It is a source of rich debate and wondrous versatility.  It remains viewed as grounds for theft and a foundation for innovation.  One can also debate whether some of the newest court ruling actually have expanded or contracted the scope of the law.  Regardless, the latest developments at home and abroad are underscoring that fair use is, or always has been, ready to find meaning for new uses, new media, and new plans and models.  Even if fair use is fundamentally unchanged, it simply has found new prominence as the entire system of copyright law expands to reach new horizons of possibilities.

Kenneth D. Crews is Of Counsel to Gipson Hoffman & Pancione in Los Angeles, California, and is an adjunct professor in the Columbia Law School in New York.  He is the author of Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions (3^rd edition, 2012).  The views expressed here are his own.  You can contact him at kcrews107@outlook.com and on Twitter.

 

For our second entry this week, we are excited to feature Kevin Smith, Director of Copyright and Scholarly Communication in the Office of Copyright and Scholarly Communication at Duke University.

Fair Use, Fixation, and the Problem of Legal Fictions

 

The Second Circuit Court of Appeals handed down a decision at the end of January that is simultaneously important and bizarre.  Bizarre because of the nature of the issue, which actually involved a debate over whether or not a work was “fixed” (a prerequisite for copyright protection).  And important because of the stance the Second Circuit took on fair use and the implications of its position for the Georgia State appeal, a decision that is still pending as I write.  Hat tip to attorney Zick Rubin for pointing the case out to me and suggesting its implications.

The case is Swatch Group Management Services v. Bloomberg, which the Second Circuit heard on cross appeals from a decision by the District Court in the Southern District of New York that found that Bloomberg had made a fair use of a recording of a telephone conference call that Swatch held with selected investors and analysts.  Swatch appealed the decision in favor of Bloomberg, while Bloomberg apparently appealed because it did not like the grounds on which it had won.

Briefly, someone working for Bloomberg managed to join the conference call and make a recording, which was then distributed to its list of “Bloomberg Professional” subscribers.  Swatch objected, registered a copyright in its own recording of the call, and sued Bloomberg for infringement.  Bloomberg argued that it had not copied Swatch’s recording but had made its own, lawful recording of a “live news event.”  More about that argument later on, but first let’s look at the fair use analysis.

Both the District Court and the Second Circuit found that Bloomberg had made a fair use of the recording of this conference call, and the reasoning the latter court applied is very telling.  They held that the use had not been transformative, but that that didn’t matter.  In fact, they suggest that the lack of transformation was a good thing.  First, in this part of the discussion, the Court cites the remark from the Supreme Court in Campbell v. Accuff-Rose Music, the case which really established the importance of the transformative analysis, that not all fair use must be transformative, citing the paradigmatic example of “multiple copies for classroom use.”  Then the Second Circuit goes on to say that the purpose of Bloomberg’s recording of the Swatch conference call was “to make important financial information… available to American investors” and that that intent is “closely analogous” to news reporting and therefore is a favored purpose in the fair use analysis.  In light of this purpose, the Court reasons, the goal of the copying and distribution is accuracy of the information, so it is sensible that no transformation took place, and that lack does not undermine fair use.

I see a couple of ways that this analysis of the purpose of Bloomberg’s use of the recorded phone call can shed light on the arguments being reviewed by the Eleventh Circuit in the GSU copyright case.

First, the Second Circuit held that Bloomberg’s admittedly commercial purpose did not defeat the fair use argument.  The public purpose, analogous to news reporting, remember, was enough to reduce the weight that a commercial purpose would normally have in countering a fair use claim.  This was the case even though the use was held not to be transformative.  All this reflects on the argument made by the GSU plaintiff publishers that without some transformation, GSU should not get the benefit, on the first fair use factor, of claiming that it has a non-profit educational purpose.  In the Swatch case, the Second Circuit affirms that even a commercial, yet publicly beneficial, purpose can favor fair use in spite of not being transformative.  This seems to completely undermine the argument being made in Atlanta; a non-profit, educational purpose is of great public benefit, and it can and should weigh in favor of fair use even if the Eleventh Circuit upholds the finding that there was no transformation.

Second, in the Swatch case the Second Circuit did not require that the material on the recording be subjected to criticism and comment in order for its “re-use” to be considered fair.  They said that the need for precision in the delivery of information was enough.  As Mr. Rubin pointed out when he alerted me to the case, there seems to be a clear analogy here to those electronic reserves at issue in the GSU case.  In order for the non-profit educational purpose to be fulfilled, students need to become acquainted with small parts of the thinking of different scholars; this is best accomplished by reproducing accurately short excerpts from a variety of different works.  Commentary is not required, at least as part of the reserves system – it is provided by the teacher in the classroom.  What is vital is that these excerpts reflect precisely what the author said and thought.  Really, this is just an added justification for the conclusion in the Swatch case that transformation was not required.

One other point from the Second Circuit is also worth a moment of our time.  In Swatch v. Bloomberg, the Court recognized that the entire phone call had been recorded and distributed.  But they held, consistently with other Circuits, that using this much of the copyrighted work was necessary in light of the favored purpose (even though it was not transformative) and therefore that the third fair use factor was neutral – it did not either favor or weigh against fair use.  In the GSU case, the Eleventh Circuit worried during oral arguments that the trial court had applied a numerical standard in its evaluation of the third factor and that the plaintiff publishers were asking the Appellate Court to apply a different, lesser standard, but a hard numerical line nonetheless.  In light of what the Second Circuit has said, maybe the best course for the panel hearing the GSU appeal is to reject both numerical standards and ask if the length of each reading is appropriate to the favored non-profit educational purpose.  The best judges of this, of course, are the instructors, who determine whether a short excerpt is appropriate or if students should, where possible, purchase the books.  So within some reasonable and flexible limit, the Court should defer to the decision of the individual instructors as too how much of a work is necessary to fulfill their clearly favored purpose.

In short, if the Eleventh Circuit panel upholds the trial court, or even creates more space for fair use in its ruling, they will be joining a growing consensus among the Circuit Courts of Appeal.  If, on the other hand, they decided to deviate from this body of precedent, they will be inviting further review.

The fact that the Swatch case was decided based on fair use had an additional, instructive effect, which we can take as a warning against using copyright law to prop up specific businesses or business models.  Bloomberg’s primary defense against the charge that they infringed copyright was that there was no copyright to infringe, since they made a recording from a live event.  The problem they faced, however, was that part of the definition of “fixed” includes this line: “A work consisting of sounds, images or both, that are being transmitted, is ‘fixed’ for purposes of this title if a fixation of the work is being made simultaneously with its transmission.”  As David Kluft explains in this blog post about the case, this sentence appears to create a “legal fiction” that anyone recording the live event is actually copying the “official” recording that is being made simultaneously with the live event.  This rule was inserted to protect professional sports leagues from recordings made from live broadcasts, but Swatch was apparently able to use it to defeat Bloomberg’s claim that there was no copyright in the unfixed, live phone call from which they, Bloomberg, made their recording.  I say apparently because the Court simply ruled in Bloomberg’s favor based on fair use; that would appear to assume that a copyright did exist – based on this legal fiction – without actually telling us that the court was applying this provision from section 101 of the copyright law.

The reason I bring this up is because I fear that this sentence intended to assist professional sports leagues might well encompass too much in the sweep of the fictional situation it creates.  As attorney Kluft asks, does this mean that a parent who videotapes a live high school sporting event might infringe the copyright created by some official recording of the same event, made simultaneously, even though the parent made her video from live action?  What if two different people make such recordings; do they infringe each other?  The problem is that the sentence does not provide details, including whose recording creates this fiction, or if any/all do.  The line was inserted without sufficient thought to solve a putative problem raised, I would guess, by lobbyists for a single industry.  But changing the law is much too blunt an instrument to protect one business or one business model; such changes will nearly always have unintended consequences that do more harm than the supposed good they were aimed at.  Whenever lobbyists for a particular industry, including the publishing industry, offer to help “solve” a problem that they themselves have identified, Congress should take great care.  In many cases, and the simultaneous fixation of a live broadcast may be one of them, those solutions prove more problematic than the situation they were supposed to address.  This warning is especially important as Congress is talking about a revision of the copyright law, since such talk will bring out special interests in droves, and many will have such “problems” that they want solved.

Kevin Smith is Director of the Office of Copyright and Scholarly Communications and is both a librarian and an attorney experienced in copyright and technology law. He also serves as a nationally recognized resource on local and national policy in order to help the Duke community stay informed and involved with the changing landscape of scholarly publication. You can read his regular blog here.