• November 21, 2014

Fair Use and Copyright: The Law Is the Law

To the Editor:

I am troubled by the plethora of articles in your publication that, from my point of view, which is that of a literary agent, encourage your readers to break the law when it comes to the use of copyrighted material in the classroom and elsewhere ("Pushing Back Against Legal Threats by Putting Fair Use Forward," The Chronicle, May 29). I downloaded and read Patricia Aufderheide and Peter Jaszi's "Code of Best Practices in Fair Use for Poetry" and found it to be thoroughly misleading when it comes to copyright law. Like much of the discussion these days about piracy and copyright, it is based on what the authors would prefer rather than the copyright law as it exists.

For example, they suggest as one of their "principles" that it's OK to post a copyrighted poem on a Web site as long as there is critique or commentary accompanying it. In fact, libraries and archives (under certain circumstances) do have the right to digitize copyrighted works, but only in certain circumstances and only for use by visitors to the library premises. By posting a poem on the Internet without permission, the poem is suddenly available to the whole wired world, thereby diminishing its author's ability to license the poem to textbooks or anthologies or to control its use any further. Under Ms. Aufderheide and Mr. Jaszi's principles, a poet's entire collection would soon be available online, eliminating sales for the collection itself. It's true that many poets would likely be very happy to have the exposure for their work, but many would not, and those authors' voices are not heard in the "Code of Best Practices." It's a guide that seems to be written from the point of view that poetry needs copyright infringement in order to survive, that there are no poets who regularly license their work for use by others, that those poems have no commercial value, and that poetry is in such a sorry state that writers should be giving their work away to save it.

It's true that fair use is not perfectly defined by copyright law. It is because each work is different and a number of factors must be considered when deciding if fair use is applicable. A few lines from a poem quoted in an academic or scholarly publication most often is fair use, but multiple photocopies of an entire poem used in the classroom are not. A library or archive is permitted to make one copy for a scholar or a student, but if the library is aware that an entire class is using the material, it is prohibited from providing one copy to each student. An instructor certainly does not have the right to make multiple copies for students of any copyrighted work. Copyright permission is required for a course pack, which is a term that actually appears in the copyright law. This is why the U.S. Copyright Office recommends asking for permission to use copyrighted material whenever there is any question that fair use applies.

I do a lot of licensing of copyrighted material for the classroom. It is usually licensed for a very modest fee for course packs, and I try to respond to such requests in a very timely manner. I'm sure there are agents who do not respond to those requests, as they do not bring in revenue equal to the time spent producing the license. However, Ms. Aufderheide and Mr. Jaszi seem to be joining the throngs of Internet pirates who skirt the law with the dual excuses of expense and inconvenience. These are the very same excuses that Google used for not asking permission to scan millions of books. These are the excuses that teenagers use when they download songs from file-sharing sites. These are also the excuses that sweatshop owners and shoplifters use to justify their activities.

In the relevant copyright law (http://www.copyright.gov/title17/92chap1.html), your readers can compare what they find in Ms. Aufderheide and Mr. Jaszi's "guide" with the actual rules and regulations. These days, copyright holders are easier to find than ever. Very often permission can be arranged for no fee at all, if the use is for students or audiences that are underserved or unable to pay, or if the use does indeed offer enough exposure to offset potential lost income to its author. However, it is every author's exclusive right (with very specific limitations) to refuse to grant permission and to decide where and when their work may be published, printed, photocopied, and displayed. Many of the uses Ms. Aufderheide and Mr. Jaszi think are fair use are indeed well-meaning and intended for educational purpose, but this does not, according to the law, excuse the user from the responsibility of asking for permission or from respecting the rights of the creator of the copyrighted work.

Stuart Bernstein
New York

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