Can Use of Photocopied Textbooks be Judged Fair Use?

A hot event relating to copyright infringement raised by the domestic press in early 2017 that was in mid-January 2017, a second-year student of law who brought 11 different textbooks, 8 of which were reported to be illegally photocopied, was seriously disciplined by one-year study suspension decision by Ho Chi Minh city University of Law. However, upon coming under fire from the press, public and lawyers, Ho Chi Minh city University of Law withdrew its decision and issued another less severe penalty of warning. Before the student stated that she make reproductions of textbooks so as to offer her co-homeland friend who is the first year student[1]. In addition to Ho Chi Minh city University of Law’s 1-year initial study suspension decision that was too heavily criticized, people were concerned about whether such student of use of photocopied textbooks had constituted copyright infringement or not?

Some said no infringement is occurred since her use is just for non-commercial, teaching and scientific research purpose. Others contended that there was act of violation of copyrighted textbooks since the purpose of teaching, scientific research and non-profit is not enough to exclude infringement because right of reproduction of these textbooks are exclusive right belonging to Ho Chi Minh city University of Law as an owner of their copyright that are not permissible by her even only one copy reproduced due to the fact that her use has either affected the normal use of those textbooks or cause prejudice copyright holder’s legitimate interest in contrast to exceptions and limitation to copyright recognized in the world including Vietnam copyright legislation.

Is Berne Convention Based Three-Step Test Still Ambiguous?

Fair use, fair dealing, certain free uses or limitations and exceptions to or limitations of rights, copyright are all legal terms that are often used interchangeably in jurisprudence and copyright laws of countries all around the world. Basically they mean a limited and reasonable use of copyrighted works without having to acquire permission from, and/or without having to pay remuneration to, the copyright holders would be not considered copyright infringement.

Fair use may be found in Articles 9, 10 and 10bis Berne Convention for the Protection of Literary and Artistic Works, Article 15 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, Article 6 Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (also known as Geneva Phonograms Convention), Article 13 Agreement on Trade-Related Aspects of Intellectual Property (TRIPs), to which Vietnam is a member.

A three-step test in relation to limitations and exceptions to exclusive right of reproduction was first incorporated into Article 9(2) Berne Convention that provides for:

It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

It is submitted that three-step test standard is for identifying making reproduction that does not violate the exclusive right of reproduction of copyright holder or author also known as fair use if each of steps is thoroughly scrutinized, particularly:

(1) in certain special cases, provided that (2) such reproduction does not conflict with a normal exploitation of the work and (3) does not unreasonably prejudice the legitimate interests of the author.

Nevertheless, it is likely that the ambiguity of three-step test still in existence since TRIPs (Article 13) requires WTO members confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.

Notwithstanding the above interpretations, three-step test are continuously criticized according to a Declaration signed by well-known experts in copyright law those who attended at the annual conference of the International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP) held 21-23 July 2008 in Munich (also known as Max Planck Declaration), among of which it is said that “the three-step test has already established an effective means of preventing the excessive application of limitations and exceptions. However, there is no complementary mechanism prohibiting an unduly narrow and restrictive approach. For this reason, the three-step test should be interpreted so as to ensure a proper and balanced application of limitations and exceptions. This is essential if an effective balance of interests is to be achieved”[2]

Fair Use in Vietnam and Some Jurisdictions

Vietnam: Use of published works with neither requiring permission nor remuneration

Limitations and exceptions to exclusive right of reproduction in IP Law of Vietnam prima facie seems not to comply with Berne Convention and TRIPs when Section 25(1)(a) sets forth making one copy of the work of an author for scientific research or teaching purposes would be considered as fair use and would result in the fact that neither permission from nor remuneration for, is required the copyright holder or author. But Section 25(2) suddenly stipulates that organizations and individuals who use the works stipulated in clause 1 of this article must neither affect the normal use of such works nor cause prejudice to the rights of the author or copyright holder, and must provide information being the author's name and the source and origin of the work. The way of structuring three-step test in Section 25 of IP Law may easily cause misunderstanding for many people including IPR enforcement in practice although in view of the whole Section 25, Vietnam’s transposition of its Berne Convention and TRIPs member’s obligation is deemed obedient.

Transposition of fair use doctrine mentioned in the Treaties into the 2005 Vietnam IP Law as revised in 2009 is seen in Sections 25, 26, 32 & 33, out of which for example Section 25 provides for circumstances of use of published works with neither requiring permission nor remuneration, provided that such use of works must neither conflict with a normal exploitation of the works nor unreasonably prejudice the legitimate interests of copyright holder or author, comprising:

(a) Making one copy of the work of an author for scientific research or teaching purposes;

(b) Reasonable quoting from a work in order to comment on or illustrate one's own works, without misrepresenting the author's views;

(c) Quoting from a work in order to write an article published in a newspaper or periodical, in a radio or television broadcast or in a documentary, without misrepresenting the author's views;

(d) Quoting from a work in school or university for lecturing purposes without misrepresenting the author's views and not for commercial purposes;

(dd) Copying of a work by a library for archival and research purposes;

(e) Performing a stage work or other art work in mass cultural, communication or mobilization activities without collecting fees in any form;

(g) Audio-visual recording of a performance in order to report current events or for teaching purposes;

(h) Photographing or televising plastic art; or an architectural, photographic, or applied art work displayed at a public place in order to present images of such work;

(i) Transcribing a work into braille or into characters of other languages for the blind;

(k) Importing copies of another's work for personal use.

In addition, also by Section 25(3), Vietnam states that no application is made to items (a) and (dd) above where the work in question is architectural works, plastic works or computer programs.

China: Limitation of Rights

Fair use is found in Article 22 of Chinese Copyright Law of 2010 comprising 12 situations whereby a work may be used without permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work are mentioned and the other rights enjoyed by the copyright owner in accordance with this Law are not prejudiced:

 (1) use of another person’s published work for purposes of the user’s own personal study, research or appreciation;

(2) appropriate quotation from another person’s published work in one’s own work for the purpose of introducing or commenting a certain work, or explaining a certain point;

(3) unavoidable inclusion or quotation of a published work in the media, such as in a newspaper, periodical and radio and television program, for the purpose of reporting current events;

(4) publishing or rebroadcasting by the media, such as a newspaper, periodical, radio station and television station, of an article published by another newspaper or periodical, or broadcast by another radio station or television station, etc. on current political, economic or religious topics, except where the author declares that such publishing or rebroadcasting is not permitted;

(5) publishing or broadcasting by the media, such as a newspaper, periodical, radio station and television station of a speech delivered at a public gathering, except where the author declares that such publishing or broadcasting is not permitted;

(6) translation, or reproduction in a small quantity of copies of a published work by teachers or scientific researchers for use in classroom teaching or scientific research, provided that the translation or the reproductions are not published for distribution;

(7) use of a published work by a State organ to a justifiable extent for the purpose of fulfilling its official duties;

(8) reproduction of a work in its collections by a library, archive, memorial hall, museum, art gallery, etc. for the purpose of display, or preservation of a copy, of the work;

(9) gratuitous live performance of a published work, for which no fees are charged to the public, nor payments are made to the performers;

(10) copying, drawing, photographing or video-recording of a work of art put up or displayed in an outdoor public place;

(11) translation of a published work of a Chinese citizen, legal entity or other organization author and the title of the work are mentioned and the other rights enjoyed by the copyright owner in accordance with this Law are not prejudiced: from Han language into minority nationality languages for publication and distribution in the country; and

(12) transliteration of a published work into braille for publication.

US: Limitations on exclusive rights

Section 107 provides for notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature 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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.