[Paleopsych] CHE Colloquy Live: Fair Use and Academic Publishing
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Fri Jul 16 15:55:32 UTC 2004
Colloquy Live: Fair Use and Academic Publishing
The Chronicle of Higher Education
[I made a comment, mentioning my article, "Copyright, Congress, Due
Diligence, and Coase." Thanks to Karen for putting it on her site. May
it's ideas spread!]
Wednesday, July 14, at 1 p.m., U.S. Eastern time
Indiana University Press's withdrawal of a scholarly book is just the
latest example of copyright claims trumping scholarship. Just what use
are "fair use" provisions in copyright law if presses lack the
wherewithal to challenge such claims? What steps can be taken by
scholars to protect fair use?
The newest postings appear at the top of the page.
Thanks again! See you all online.
Richard Byrne (Moderator):
That's a wrap for today's Colloquy Live, Once again, I want to
thank Wendy Seltzer for her expertise and enthusiasm in discussing
these tricky and contentious issues.
Question from Mary, academic publishing company:
Wendy, thank you for your introduction citing the fair use section
of the U.S. Copyright Act. Is there any other concrete information
that publishers can use to determine what determines fair use?
Aside from the Copyright Act (17 U.S.C. 101 et. seq.), the
cases themselves are the best guidance. Stanford has a good
collection of cases and other materials. EFF has a Fair Use FAQ,
and our Chilling Effects project has a Fair Use module with
its own FAQ.
For more literature on copyright, fair use, and the battles
surrounding copyright expansion, I'd recommend a few recent books:
Lawrence Lessig, The Future of Ideas and Free Culture;
Jessica Litman, Digital Copyright; and
Siva Vaidhyanathan, Copyrights and Copywrongs and
The Anarchist in the Library.
Thanks again for joining here. I'm sorry I couldn't get to all the
questions in an hour, but I'd be glad to talk further by email,
wendy at eff.org and on EFF's DeepLinks weblog.
Question from Richard Byrne:
Many of the most high profile disputes over copyright and fair use
have centered on conflicts between scholars and copyright holders.
From experience or anecdote -- because it clearly is not written in
the law or numbered among the "four prongs" -- do courts take motive
for asserting fair use or rejecting permission into account in such
Courts have recognized that some of the most important fair uses
will be those -- like scathing parody or criticism -- for which the
copyright holder would never grant permission. Because those uses
would never be met in the market, yet benefit the public, the courts
take extra care to preserve them as fair use.
Richard Byrne (Moderator):
Still working on a few more questions. Stay tuned a bit longer!
Comment from Kenny Crews, Indiana University (IUPUI):
I have to be careful to emphasize that while I am part of Indiana
University, I have had absolutely nothing to do with the case in
question. I am faculty in the law school in Indianapolis, and I direct
a copyright office (www.copyright.iupui.edu). I am NOT legal
counsel to the university or press.
Some quick and general points. To clarify the matter of copyright
duration, as of Jan 1, 2003, unpublished works from the past were
given the duration term applied to current works. For most works, such
as the ones likely at issue here, that is "life plus 70 years." The
rules are even more complicated, because the old and unpublished works
may be "works made for hire," or "anonymous," in which event the rules
get messy. The point: Copyright lives on a long time. Another critical
issue for universities to consider is "sovereign immunity." State
colleges and universities may well have the benefit of immunity in
federal courts (where copyright claims must be filed) according to a
series of cases from the Supreme Court. We should always weight that
possibility in the balance.
Question from Peter Hirtle, Cornell University:
Part of the problem with fair use is that you don't really know if
your use is fair until a judge tells you. Yet there have been
relatively few cases that address scholarly use of material. Is it
time for a test lawsuit that could provide some guidance? Or
alternatively, could professional associations specify their own "best
practices" for working with copyrighted works, and hope that the
courts will later endorese them?
There have been attempts, by NINCH, among others, to create fair
use guidelines, but since judges can't give advisory opinions (they
can only decide specific contested cases), it's hard to know whether
the guidelines reflect what a court would decide. Test cases would
help -- real disputes that presses were willing to litigate would at
least provide some firm guideposts one way or the other.
Richard Byrne (Moderator):
We're at 2 PM, but Wendy Seltzer will stay on for a few more
minutes to answer some back-logged questions. Thanks once again for
all the response!
Question from Richard Altschuler, scholarly publisher, Gordian Knot
Books and other imprints:
You just answered a question in which you said the market factor
might be the most important of the four factors in determining fair
use. If that is the case, then why wouldn't it be fair use for a
scholarly anthology to include a reprint of an entire article from a
journal under use fair use law, since there is no way anyone would
purchase the anthology to read the article when they could read the
article in the journal for free? In other words, the journal that
originally published the article (presumed to be the copyright holder)
would not suffer any possibility of economic loss by the inclusion of
the article in a commercial anthology. Correct? If so, why are
permissions required to reprint articles from academic journals,
usually for a fee to boot?
Because the courts have recently (since American Geophysical,
particularly) found a "market for licensing copies" relevant, not just
the market for the work in complete original form. Elsewhere, I've
complained about the circularity of this reasoning.
Question from Steve McDonald, Rhode Island School of Design:
In terms of risk analysis, the "good faith fair use defense" (17
U.S.C. 504(c)(2)) provides a potent defense for nonprofit educational
institutions and libraries that simply make an honest mistake when
trying to interpret the vast gray area of fair use -- no statutory
damages can be awarded. In fact, the mere existence of that defense
probably makes it considerably less likely that they would even be
defendants in the first place. Shouldn't we be taking that into
account when we make decisions about whether and how to proceed?
Yes, thanks for calling attention to this point, although I'm not
aware of much caselaw interpreting the subsection. ( See
Comment from Linda Goff, CSU, Sacramento:
As an academic librarian, I've been teaching about proper citation
styles, plagiarism, copyright and fair use for over 30 years and I
must tell you that many (most?) students think all these rules and
nuances about the proper use of information are stupid and that we've
made them up just to complicate their lives. That said, I've just
found a wonderful new online tutorial at UCLA called "Bruin Success
with Less Stress" that is a great way to teach students and faculty
the basics. I recommend it to everyone:
http://www.library.ucla.edu/bruinsuccess/ I congratulate the
project team at UCLA, led by Pauline Swartz. I'd like to meet her.
Linda J. Goff, California State University, Sacramento.
Question from Jack Bernard, University of Michigan:
Wendy: I think one of the reasons we see presses balking is that
the amount of work (fact gathering, legal analysis, and guesswork)
that it takes to make a fair use assessment is considerable. Many
academic presses do not have the resources to support such work. In an
increasingly contentious climate and with increasingly tight budgets
it is not surprising that presses want authors to assume more
responsibility for getting permission or "proving" that the law
permits the use the want. The transaction costs around fair use
analyses can be quite high. With all this in mind, do you have
thoughts about how presses might streamline their analysis without
burdening ill-prepared academics?
In the short term, it's often cheaper for a press to ask an author
to get permission or to cut a quote rather than risk the fair use
test. In the long term, though, those practices raise costs by
reducing the number of examples of fair use to which courts can look
when evaluating "industry practice." I heard one publisher complain
about being asked for permission for a 10-word quotation, and my
colleague Cory Doctorow was furious about being asked for signed
consent to reprint a work he had explicitly dedicated to the
public domain. Instead of demanding proof every time, in the same way
that many publishers have internal guidelines for the maximum
permissible use, publishers should also set floors below which they
won't ask for permission -- perhaps a paragraph quotation, to start.
If we can establish some clear practices and precedents, we can reduce
the costs of future fair use analyses.
Question from Llloyd Davidson, Northwestern Univ.:
Robert Greenwald's new film, Outfoxed: Rupert Murdoch's War on
Journalism, will probably attempt to escape copyright infringement
lawsuits against his use of significant excerpts from Fox's news
programs by claiming that critical and satirical use of such material
is protected. Whether you have seen the movie or not, do you think
that such a significant use of material could ever have a chance of
being protected from copyright infringement suits based on such a
While I haven't seen the film, I'd argue strongly in its favor as
protected fair use -- whatever political angle it takes. I'd similarly
defend a critic of Michael Moore's who wanted to use excerpts from
Fahrenheit 9/11. So long as the excerpts are used in the process of
criticism, and not merely gratuitously, they serve a purpose different
from that of the original work and don't substitute for the original's
commercial market. In today's multimedia environment, you can't
effectively criticize newsmakers without using materials in which they
may claim copyright. We need to ensure our critics have access to the
same tools and technologies that their targets have.
Richard Byrne (Moderator):
We're closing in on 10 minutes left in our Colloquy Live. Thanks
to everyone for all the good questions and comments.
Question from Sandora, small liberal arts college:
If ten years ago people had challenged the decisions making it so
hard to produce course reader packets, would it have made any
difference today? Would it have ever been possible to establish enough
legal precedence for fair use to be interpreted in the way its plain
language intended? It seems too late now.
You're referring to cases like Princeton Univ. Press v. Michigan
Document Services, where the court held that the copy-shop's
production and sale of coursepacks infringed copyright of some of the
books it excerpted. Those decisions, and the American Geophysical v.
Texaco case that found the "market for licensing copies" to be a
relevant market for fair use analysis, rather than looking at the
market for the books or magazines themselves. It's sadly true that the
questionable reasoning of these cases has become conventional wisdom
even in courts where they're not binding precedent. Arguments about
"markets for licenses" tend to become circular fast, because any use
_could_ be sold and licensed. Instead, it's important to keep arguing
that fair use is not just "market failure," as Wendy Gordon once
wrote, but an important public policy that some uses of copyrighted
works _should_ be available without pay or permission. "Fair use as
First Amendment policy" arguments are stronger in the case of more
transformative works (commentary, criticism, and quotations in
original scholarship are better than coursepacks), and we should press
our arguments harder in those circumstances.
Comment from Frank Forman, U.S. Department of Education:
I wrote a piece a couple of years ago (which has nothing to do
with my official work) making an economist's case for making it easy
for low value works to enter the public domain. The argument is a
little complicated and novel to non-economists, as it goes into
"transaction costs" and the like. I can only advertise it here: It's
"Copyright, Congress, Due Diligence, and Coase" and can be found at
http://www.edu-cyberpg.com/Internet/FrankForman.html . I hope you
find the ideas of some merit and steal them.
Richard Byrne (Moderator):
There are 20 minutes left in today's Colloquy Live on Fair Use and
Academic Publishing. We have time for more questions and comments, so
please keep them coming.
Question from Marshall, Large Private Institution:
A researcher wants to conduct an experiment testing the
effectiveness of spoofing technologies that the recording industry
uses to dilute the universe of copyrighted music that is available for
illegal copying on the Internet. The experiment requires that the
researcher deploy a device that will roam the Internet and make copies
of music files. The copies will be used only for research purposes,
destroyed when the data has been collected, and there is no other way
for the researcher to collect such data. Fair use?
Fascinating question, and I think indeterminate but likely fair on
the four factors. The use is non-commercial and transformative (for a
different purpose than listening to music) (plus); the works are
creative (minus); the entire works are used, but that's no more than
necessary for the purpose (slight minus); there's no effect on the
market because these aren't substituting for music purchases and the
record companies and music publishers would never sell licenses for
such research (strong plus). On balance, I'd say the strong showings
on transformative use and lack of market effect tip toward fair use.
The researcher will also want to watch out for potential
anticircumvention problems if the research encounters technological
Question from Bruce L. Rockwood, Prof. of Legal Studies, Bloomsburg
I teach and write about law and literature, as well as business
law. The paperback editions of Shakespeare I use include essays on his
"sources" -- essentially borrowings or more from previous plays used
without paying a royalty. In the Sixties we called this the "folk
process," and in teaching we call it "putting together teaching
materials." I am inclined to think copyright law is going in the wrong
direction if such forms of creativity are going to be the object of
legal action or publishing censorship. Further, I think it facilitates
ideological censorship. For example, I would like to use Sinclair
Lewis, It Can't Happen Here, but the publisher informed me they had no
plans to bring it in to print any time soon. No doubt it would offend
Ashcroft. My position is simple: if the copyright holder isn't keeping
a book in print, anyone should be able to reprint it for teaching and
research (or pamphleteering, for that matter). Appreciate your
comments. Thank you.
Thanks. Your examples show copyright being used in ways that clearly
don't "promote the progress of science and useful arts" as the
Constitution describes it. As copyright term increase, it takes ever
longer for us to be able to build upon past culture as Shakespeare and
even Jazz musicians could.
Specifically regarding out-of-print works, Rep. Zoe Lofgren has
introduced the Public Domain Enhancement Act, following a proposal
from Lawrence Lessig, to permit copyrighted works to enter the public
domain after 50 years if their copyright holders did not pay a nominal
fee to renew the copyrights. You can urge your representatives to
co-sponsor the Eldred Act with this letter.
For more examples of copyright's divergence from promotion of culture,
see Siva Vaidhyanathan's Copyrights and Copywrongs and Lawrence
Lessig's The Future of Ideas.
Question from Daniel Marshall, TCI Coll. of Technology:
How many copies of a videotape is it Fair Use for an academic
library to make for its own use? What if a faculty member owns the
Outside of fair use, there are additional copyright exceptions for
libraries and archives, particularly for materials no longer
commercially available. Even libraries can't make copies that
substitute for market purchases, though, so if the tape belongs to a
faculty member, the library won't have a strong defense for making a
copy rather than buying its own. (Under the first sale doctrine,
however, the faculty member remains free to give his tape to the
Question from Joe, Coastline Com. College:
Can you give some clarification as to what and how much
copyrighted material can be used in a classroom? For example: 2 to 4
pages at most per class from various sources.
As I mentioned, there are no bright-line rules, and attempts to
create fair use guidelines have generally stalled. The statute
specifically says that copying for "teaching (including multiple
copies for classroom use)" may be fair, and more than four pages is
probably still fair.
The most important factor in the evaluation is often the fourth,
effect on the market. Making copies of entire short stories out of an
anthology or articles out of a magazine might be okay for classroom
use, while making copies of an entire textbook meant to be sold to
students wouldn't be. (The caselaw has also distinguished between
schools making copies and copy shops profiting from selling copies to
Richard Byrne (Moderator):
We have roughly 35 minutes left to go in today's Colloquy Live.
We've received some terrific questions thus far -- and we'd love to
Question from Rodney Petersen, EDUCAUSE:
It occurs to me that the need to assert "fair use" is often
necessary because authors and institutions of higher education have
not done a very good job managing copyrights in the first place,
especially the allocation of rights between authors and publishers.
The "Principles for Balancing Stakeholder Interests in Scholarship
Friendly Copyright Practices"
nciples.php) are aimed at "optimizing access to scholarly
communications in all formats". Rather than simply relying on "fair
use", wouldn't all of the stakeholders (authors, publishers,
universities, librarians, and the public) be better off if we followed
the principles recommended by this international working conference on
copyright and universities?
I agree that academics may be better served by wide dissemination
of their works than by the "exclusive rights" copyright permits them
to assert. It would be terrific if more institutions made their works
more widely available, including under more reader-friendly copyright
licenses like those offered by Creative Commons. I don't think
that would eliminate the need for fair use, but it could provide
greater certainty for authors wanting to quote or otherwise re-use in
Question from Christine L. Sundt, University of Oregon:
The article cited mentions 'infringing copies' but why not
'fair-use copies'? Fair use is meant to be used as a defense and it
must be used in order to survive as a right and privilege. This right
is clearly stated in the law as a balance against privileges granted
to the author. Fair use does not require permission or a license.
Isn't obtaining permission to use (quote or interpret) anything and
everything unpublished signaling the death of scholarship? When does
the denial of permission to quote become censorship?
Yes! If we move from a fair use culture to a permission culture,
we lose important freedoms to criticize and reinterpret. We don't want
to live in a society where every biography is an "authorized"
biography, where every movie review is approved by the producer. Our
culture would be far poorer for it, and that's what fair use is
supposed to help shield us against.
As the Supreme Court said in 1994, holding that 2 Live Crew's parody
of Roy Orbisons "Pretty Woman" was fair use:
"[T]he unlikelihood that creators of imaginative works will license
critical reviews or lampoons of their own productions removes such
uses from the very notion of a potential licensing market. 'People ask
. . . for criticism, but they only want praise.' S. Maugham, Of Human
Bondage 241 (Penguin ed. 1992).... The fact that a parody may impair
the market for derivative uses by the very effectiveness of its
critical commentary is no more relevant under copyright than the like
threat to the original market."
Question from Rich Byrne. Chronicle of Higher Ed:
I know that one of the ideas that you've been kicking around to
enable academic and small presses to defend themselves when they
assert fair use provisions is pooling of financial/legal resources
along the lines of insurance. Can you explain how that might work?
"Cost" and "risk" are the most common reasons I hear why authors
and publishers don't rely on the fair use defense. Even when it's very
likely that a short quotation would be "fair," publishers are afraid
to litigate and afraid of the potential damages if they lost. The
economics of publishing makes presses and universities unduly risk
averse. Too often, then, our fair use rights are lost not in court,
but because no one even takes them to court. In other areas of life,
we insure against expensive but improbable risks. It strikes me that
publishers who share a common interest in expanding the reach of fair
use could similarly pool resources to insure against infringement
lawsuits where fair use was at issue. Instead of relying on commercial
insurers, whose primary goal is limiting financial exposure, an
academic collective could put greater weight on academic freedom and
scholarly commentary. Together, they could generate the resources to
pay legal counsel and litigate suits through to establish more legal
precedents favoring fair use.
Question from Richard Altschuler, scholarly book publisher, Gordian
Knot Books and other imprints:
After reading the Chronicle's article about the "fair use" issue,
I wonder, "What would be the penalty if a court found against Indiana
Press and Ms. Curtis?" After all, the contested issue is a legitimate
one, especially because the amount of disputed text is less than one
percent of the entire book. As for the cost of IUP to litigate the
issue, why don't they just have the Press editor and/or book editor
present the defense case? The defense argument is so clear cut and
easy to present, that it seems the Press would incur little or no cost
to litigate the issue. Of course, if the penalty would be substantial
in case of a loss, then that would be worth the Press and editor
considering, from a cost-benefit viewpoint. By the way, would the
lawsuit be civil or criminal, or even both? Thank you.
I'd like to see more presses making that analysis, rather than
ducking and running at the mere thought of a lawsuit. A victory for
fair use could be a substantial benefit to Indiana, Clarke scholars,
and the wider academic community.
Statutory damages for copyright infringement run from $750 -$30,000
per copyrighted work (statutory damages are awarded without proof of
actual harm to the copyright holder, so long as the copyright holder
has registered the copyright and proved infringement). Damages can be
lowered to $200 for innocent infringement or raised to $150,000 for
In clear cases, courts can also award costs and attorneys' fees to the
_prevailing_ party -- either the copyright claimant or the fair use
defendant. In the recent case by Mattel against artist Tom Forsythe,
who put Barbie into enchiladas and margarita glasses, the court
ordered Mattel to pay Forsythe nearly $2 million in fees and costs
because it ruled his work was clear fair use.
Copyright infringement suits are almost always civil, between two
private parties. The justice department can prosecute those who
infringe for commercial purposes or financial gain, but those are
usually "piracy" cases involving wholesale reproduction, not
Question from Siva Vaidhyanathan, NYU:
Didn't the 1998 Sonny Bono Copyright Term Extension Act place all
unpublished material created before January 1, 1978 into the public
domain if it was not published by Jan. 1 2003?
Therefore, is not all the material in question in the public domain
You're right that the Bono Act gave term limits to copyrights in
unpublished pre-1978 works, but unfortunately for the public domain,
it gave those works until the later of 2003 or the end of the terms
they would have gotten if created post-Bono. So Rebcecca Clarke's
estate gets life+70 years -- until 2049 -- in all unpublished works.
[You can see copyright serving its incentive function, because of
course, Clarke was posthumously induced to write by that term
Richard Byrne (Moderator):
Two of the first questions that we have received deal specifically
with the story that I wrote last week, "Silent Treatment" -- about
Indiana University Press's withdrawal of a book on Anglo-American
composer Rebecca Clarke after a claim of copyright infringement by the
holder of copyright to Clarke's unpublished writings.
Thanks for inviting me to join you.
First let me give a few notes about fair use, an important part of the
public-private balance of copyright. It is now codified at Section 107
of the U.S. Copyright Act as a limitation on the exclusive rights of
copyright holders. Fair uses are fair without the permission of the
copyright holder, even against that permission.
The law sets out a four-factor test:
1) the purpose and character of the use (non-commercial or commercial;
transformative or mere duplication)
2) the nature of the copyrighted work (fiction or nonfiction,
published or unpublished)
3) the amount used in proportion to the whole
4) the effect on the market for the work
(See http://www4.law.cornell.edu/uscode/17/107.html )
More factors in your favor makes a finding of fair use more likely,
but the law gives us no bright lines or percentages. That's part of
the reason why Lawrence Lessig has been saying that "fair use is
merely the right to hire a lawyer."
I should also note that the Electronic Frontier Foundation and other
public interest organizations do try to make it easier to hire a pro
bono lawyer in fair use cases. We think it's critically important to
preserve fair use as an actual, not merely hypothetical defense.
Richard Byrne (Moderator):
Good afternoon. Welcome to this week's Colloquy Live. My name is
Richard Byrne. I am the editor of the Chronicle's research and
publication section. Our chat today concerns Fair Use and Academic
Copyright laws protect the rights of authors, but at times they also
have bedeviled scholars' research efforts. The "fair use" provisions
of copyright law should provide scope for scholars to do their work
and stay on the right side of the law, but changes to copyright law
and strong challenges to fair use have made both scholars and academic
presses skittish about asserting fair use.
Our guest today, Wendy Seltzer, is a staff attorney at the Electronic
Frontier Foundation and a fellow at the Berkman Center for Internet
and Society at Harvard University. She will be answering questions
today about the uses that fair use can be put to in an academic
setting, and she will also discuss a few ideas that she has been
kicking around about how scholars and academic presses might assert
fair use provisions of copyright law in a more active fashion.
Thank you, Wendy, for agreeing to appear on our chat today. Welcome.
59. mailto:wendy at eff.org
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