“Fair Use” is defined by the law, not by publishers
January 26, 2012 in Opinion
A discussion thread has recently opened up in response to short article by Simon Wellings of metageologist who wrote about how various publishers allow (or forbid) you to use their copyrighted material in a news story or blog post. Brian Romans added to this discussion a few days later and the Geological Society of America sent out a tweet reminding everyone of their policy regarding reprinting of copyrighted material.
While I think the GSA policy is fair in the sense that they permit you to use enough of the copyrighted material to write a decent news story or blog post, an important point has been lost entirely: “Fair Use” is defined by the law, not by publishers.
It’s nice that the GSA permits the use of a “single figure, a brief paragraph, or a single table from a GSA publication” without permission, however that’s not their decision to make. U.S. copyright Law is codified in Title 17 of the United States Code and the doctrine of “fair use” is described in section 107 of the Copyright Law. The government even provides this useful summary of “fair use”. Reprinted here (with attribution, of course) is the relevant section.
“Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
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. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.” (emphasis mine)
So there you have it. The use of a single figure for teaching might be considered “fair”, while the production of that same figure on a t-shirt sold for profit may be deemed by the court to violate the publishers copyright. However, nowhere in the above definition does it say that “fair use” is dependent on the policy of the content owner. If the GSA or any other publisher wants to define “fair use” as one figure or ten, they are welcome to, however it’s ultimately up to the courts to decide whether a specific use is “fair” or not.
Interesting.
Do you know what causes a case to brought to court? If it requires the instigation of the copyright holder, then in practice the law won’t apply in cases the publisher has chosen to allow.
I’m NOT a lawyer, but here is my understanding: Unless you are profiting off someone else’s copyrighted work or seriously degrading its value by your actions, then this is a civil, not a criminal matter. In that case, the publisher would most likely send you a “cease and desist” letter warning you to stop doing whatever it is you are doing. Lawsuits are expensive and they will try to solve this out of court. The example of a reporter or blogger slightly overusing their material is simply not going to go past this point, but if it did, the decision to sue would be theirs. In that sense you are absolutely right. In the absence of a formal civil complaint from the publisher, nothing would come of it. However, as I said in the post, “fair use” is whatever the court says it is and a publisher’s “fair use” policy is not a legal document. It’s just a signal to you about how much use they’re willing to tolerate before challenging you on fair use grounds.
So, this is a U.S. law though. The ‘founding country’ for Elsevier, for example, is the Netherlands and its headquarters are currently in Amsterdam. Do you know how this affects what you are saying here?
I agree with Ian Saginor on the copyright law, but however it depends on how far the copyright is taken because this could be miss understood if this has serious effects on the publisher who created and worked for the credit.
Ian, I think you make an important point here. However, since these organizations are made up of the community of scientists, I like that the representation is willing to have this discussion and work with their members to help clarify. That is, while it may not be their decision to make in a strict legal sense, establishing an understanding about this with their members is a good thing in my opinion.
In response to Drummonds, I agree that publishers have a right to defend their intellectual property, particularly when it’s value is diminished through unauthorized use. I was simply pointing out that the line in the sand between fair and unfair use is ultimately drawn by courts, not publishers.
In response to Brian, give me a few days to look into the international aspect of this. I know just the person to talk to. Also, I never meant to pick on the GSA, which is a truly wonderful organization. I too appreciate their willingness to permit limited use of their copyrighted material as well provide guidance to those who would like to fairly use it. My only real point is that fair use is what the courts say it is. Simon Wellings listed some organizations whose policies were more permissive and some that were less permissive, but that distinction has no weight in law.
Ah yeah, I see what you mean. I’m guessing that as long as someone follows the policy as stated by an organization like GSA or SEPM that that organization would probably not sue.
I’ve been sent an interesting link about proposed changes to UK law.
http://www.ipo.gov.uk/pro-policy/consult/consult-live/consult-2011-copyright.htm
They *seem* to propose providing explicit legal protection for precisely the kind of usage we are talking about (limited reproduction for purposes of news or review).
This would cover blogs:
http://www.ipo.gov.uk/consult-ia-bis0310.pdf
Note that the UK has ‘fair dealing’ rather than ‘fair use’. Under the existing legislation Section 30 already provides copyright exemption for the purpose of criticism and review, as long as it is accompanied by an acknowledgement and has been made available to the public.
Technically, I think (and IANAL), I could copy a whole journal article on my blog (hosted on UK servers) and as long as I critic/review all of it and provide a link back to the original, I am not breaching copyright. I wouldn’t like to try it though. In practice ‘fair dealing’ would limit be to extracts only but the proportion I can copy isn’t enshrined in Law. The proposals are to extend this beyond just the purposes of criticism and review.