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.