A long time Five years ago at a campus far, far just over 900 miles away, one of my (now former) colleagues tried to get the university library to scan some 19th-century primary documents to put online as part of her electronic reserves. We can’t do that, she was told. Someone may have bought the copyright. Um… no. No they may not have.
Look, I’m as much in favor of recognizing and respecting intellectual property rights as the next person, but thanks in large part to Hollywood and the commercial music recording industry, things are getting way out of hand. If it’s a modern, scholarly edition of an out-of-copyright text, then of course it’s copyrighted: the notes, the introduction, the silent editing and emendations are all the work of the scholar or scholars who created the modern edition. However, there are many, many things that are in the public domain now. Period. (Not to mention all the materials made available with a Creative Commons license.)
Furthermore, it would be in our best interest as teachers and scholars to start being more assertive about the doctrine of our “Fair Use” rights. [Language of the previous sentence edited in response to comment from Jonathan Eznor.] In order to do this, we’re going to need the support of the institutions for which we work. And we need fewer librarians like the one at my former place of employment, where the answer to every question about reproducing intellectual property is (or seemed to be) “No.”
What follows are a few links, lightly annotated, relevant to this issue:
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I appreciate your perspective, but please remember, “fair use” is not a right, it’s a defense to infringement. It comes from Section 107 of the Copyright Act, and can’t be definitely determined outside a courtroom. As the site to which you link for the definition of fair use itself says:
“The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.”
Section 108 is a different defense, for libraries making archive copies, and Section 110 gives certain exemptions to infringement for instructional display in the classroom and other limited purposes.
As an educator myself, I struggle with the issues of copyright, and am grateful for some of these exemptions, but as both an educator and an attorney, I have too often seen well-meaning individuals and organizations violating copyright law, and exposing themselves to potential damages, based on a misunderstanding of “fair use.”
Thank you for the comment, Jonathan. I’ve corrected the language of the blog post. Here are a few more links:
Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code
(Note: according to the site, “the pdf version of the copyright law [provided by this site] is up to date. However, the text version is in the process of revision and does not reflect amendments made by three enactments approved in October 2008.”)
Link to PDF of Chapter 1, which contains the relevant sub-sections.
And here are links to the text versions:
§ 107. Limitations on exclusive rights: Fair use
§ 108. Limitations on exclusive rights: Reproduction by libraries and archives
§ 110. Limitations on exclusive rights: Exemption of certain performances and displays
And, as you say, what constitutes “Fair Use” is determined in the courtroom, and such cases are not inexpensive, but the more we shy away from being assertive, the more we’ll end up paying in permissions and fees (over and over and over again) to copyright holders. In short, it seems to me (and I’m admittedly obviously not a lawyer), we can either let ourselves be nickeled and dimed for generations to come, or we can spend the money now on legal fees to draw a line in the sand and help keep Fair Use alive and kicking.
Easier said than done, I know.
Good post! I, as a librarian, agree that librarians can sometimes be obstacles around use of materials where copyright is unclear. Partly this is because we’re sometimes misinformed and not well educated about copyright and fair use. However, I also think that we’re often following the lead of our organizations. If University Counsel and/or library leadership is risk averse, then it’s likely that the rank and file librarians will also be risk averse . I think there is also sometimes hesitancy on the part of library leadership to provide ANY advice around copyright because ‘we are not lawyers’. I’d like to see this change – I think that the more librarians and faculty and graduate students really understand copyright issues and can discuss it without feeling that we need to have a lawyer in the room, the more awareness of the problems with the current copyright structure there will be.
Great post. I am currently employed in an archives in an academic library and pursuing my MLIS on the side. Copyright is a huge issue in the library and archives fields, and as Sarah said, it is something we need to do a better job educating ourselves about (so we can educate our patrons…)
There is a lot of discussion about copyright right now within the archival community. Peter Hirtle of Cornell just published a on copyright as it relates to cultural institutions and digitization.
Not a “right”? That’s pure semantics. Fair use is the doctrine that balances the limited monopoly (granted by Congress pursuant to the Constitution’s Copyright clause) over the fixed expression of a creative work against the RIGHT to free speech guaranteed by the First Amendment. That fair use is raised as a defense to a claim of infringement has nothing to do with whether or not it’s a “right.” You have a 4th Amendment right to be free of unreasonable searches and seizures. That you raise it as grounds to exclude evidence in a criminal prosecution doesn’t diminish its right to be called a “right.”
shrug I’m not a lawyer, so I won’t pretend to have expertise on this particular question. I’ll just stick to my assertion that academia should be more aggressive about claiming Fair Use.
It is interesting that this began with a discussion of 19th century primary documents, which, by definition based on their age, CANNOT be copyrighted. Now if those documents were translations made by modern translators, they might be, but the library was completely wrong in even contemplating that the online reserves were inappropriate. What’s next? Copyrighting the pyramids? Oh wait: that has been attempted too:
http://afp.google.com/article/ALeqM5hGhJUxebdPsEOUZ3O5S8f_6VhHww
As an author and owner of dozens of copyrights, I definitely want protection for my work and chafe whenever I see others steal it (and yes, it is theft when you take it without my permission and reproduced it in toto or in significant proportion to the overall work). Yet, copyright law has gone too far. Mickey Mouse, for example, may be out of copyright for some earlier works:
http://www.public.asu.edu/~dkarjala/publicdomain/Vanpelt-s99.html
Yet it is the “mouse that roared” that keeps extending copyright long after it ought to be been extinguished. I respect and believe in copyright at the time of creation but to retroactively extend copyright indefinitely not only violates the Article I, Section 8 of the US Consitution (“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” — emphasis added) but also does absolutely nothing “to promote the Progress of Science and useful Arts”. After all, I can’t go back in time and create new works in the past, so why retroactively extend copyright at all? The original Supreme Court decision allowing this monstrosity is an affront to all, including the copyright holders themselves since it subjects them to the possibility of retroactively cancelling copyrights as well (hey, if one can extend rights retroactively, one can remove them as well since that is precisely what we are doing when we get extend copyright protection: we are removing the right to have the work be placed in the public domain–I personally know people who were waiting for older works to go out of copyright so that they could produce derivative works and cheaper editions but now must wait another generation to be able to do so because of this blatently irresponsible Supreme Court decision.
Zagros Madjd-Sadjadi Associate Professor of Economics & Director, Center for Economic Analysis Winston-Salem State University
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