The Chronicle: Colloquy Live Transcript

Fair Use and Academic Publishing

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?

A transcript of the chat follows.

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 Publishing.

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.

Wendy Seltzer:
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2) the nature of the copyrighted work (fiction or nonfiction, published or unpublished)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):
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.

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 anyway?

Wendy Seltzer:
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 extension... NOT.]

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.

Wendy Seltzer:
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 willful infringement.

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 quotation.

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?

Wendy Seltzer:
"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 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?

Wendy Seltzer:
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 Orbison�s "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 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" (http://www.surf.nl/copyright/keyissues/scholarlycommunication/principles.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?

Wendy Seltzer:
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 many instances.

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 get more.

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.

Wendy Seltzer:
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 students.)

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 videotape?

Wendy Seltzer:
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 library.)

Question from Bruce L. Rockwood, Prof. of Legal Studies, Bloomsburg University:
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.

Wendy Seltzer:

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 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?

Wendy Seltzer:
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 protection measures.

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.

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.

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.

Wendy Seltzer:
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.

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 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 defense?

Wendy Seltzer:
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.

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?

Wendy Seltzer:
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.

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 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?

Wendy Seltzer:
Yes, thanks for calling attention to this point, although I'm not aware of much caselaw interpreting the subsection. ( See http://www4.law.cornell.edu/uscode/17/504.html#504.c_2_i )

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?

Wendy Seltzer:
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.

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 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?

Wendy Seltzer:
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.

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.

Richard Byrne (Moderator):
Still working on a few more questions. Stay tuned a bit longer!

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 cases?

Wendy Seltzer:
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.

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?

Wendy Seltzer:
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@eff.org and on EFF's DeepLinks weblog.

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.

Wendy Seltzer:
Thanks again! See you all online.