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April 24 2012

Fair use: A narrow, subjective, complicated safe haven for free speech

Questions of fair use continue to arise, with the most recent fair use judgment coming from a U.S. federal court in Nevada, which ruled that excerpting copyrighted materials — up to 10% of the original work in the case of a newspaper story — is fair use.

I reached out to Miles Feldman, co-chair of the litigation and intellectual property departments at the Los Angeles-based law firm of Raines Feldman LLP, for more on the topic of fair use. In the following interview, Feldman takes a look at factors courts consider, offers a few guidelines and best practices to follow, and highlights some fundamental problems with Creative Commons Licensing.

How is "fair use" defined and what is its legal purpose?

Miles Feldman: Basically, the fair use doctrine creates a narrow safe haven for authors to quote, comment on, or parody copyrighted material. It was built into our copyright laws to protect freedom of speech and our First Amendment rights.

Does the breadth of the fair use guidelines cause confusion?

Miles Feldman: There are four factors courts look at to determine if fair use applies:

  1. The nature of the work used
  2. The nature of the new work
  3. The amount of the original work used in the new work
  4. The effect on the market for the original work

These factors do involve some subjectivity. Uses that are more likely to be found to be fair are those that do not displace sales of the original work. For example, a parody or commentary of a book will not displace a sale of the original work. Where this gets much muddier is when authors create new works based on the original, claiming the new work is a parody of the original work. A notable example is the work "The Wind Done Gone," by Alice Randall, which was a reworking of the well-known "Gone with the Wind," by Margaret Mitchell, telling the story from the perspective of the slaves. "The Wind Done Gone" was held to be a fair use because it commented on the original and would not displace a purchase of the original. On the other hand, creating a sequel to a copyrighted book would not be fair use because one of the rights that an author has is to create derivative works based on their works of authorship.

What are some best practices people should follow to stay within the guidelines?

Miles Feldman: First, quote just enough needed to comment. Because the amount of earlier work that is used is a factor in the analysis, the less of that work that is incorporated into the subsequent work, the better. Further, authors should ask themselves if the use will have an impact on the market for the earlier work by displacing a sale. Of course, the safest course of action, but not really practical, is always to obtain a license before using any material that is protected by copyright.

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What are the most common fair use abuses?

Miles Feldman: The biggest would be using more of the copyrighted work than was necessary. For example, if you are going to report on the death of Michael Jackson, some footage of the star may be included in the story and would likely be considered fair use. However, if you broadcast the entire "Thriller" video in memoriam, that would likely be deemed infringement and the fair use defense would not apply.

What kinds of content aren't protected by copyright or subject to fair use?

Miles Feldman: Content that is older than 200 years. Such works are now likely in the public domain. Moreover, ideas are not protected by copyright. Rather, the expression of an idea is protected. Therefore, anything that is merely idea and not expression is not subject to fair use, but is free to be used nonetheless. In the same vein, stock literary devices that are common in most books are not protected by copyright. In addition, titles to literary works are not copyrightable.

How would someone know if something is in the public domain or not?

Miles Feldman: The first step is to determine when the work was initially created and when it was first published. If the work was published after 1923, it is very difficult to determine whether it is in the public domain or whether it is still protected by copyright. Recently, the Supreme Court made it even more difficult to determine whether works are in the public domain when it held that the copyrights on foreign works that had fallen into the public domain could be restored.

However, there are some good research tools to determine the status of works. For motion pictures, a good place to start is with a search of the United States Copyright Office database. For music compositions and sound recordings, ASCAP and BMI maintain records of the music publisher for a given work. The music publisher will list the work's original author and date of publication. Once an author who wishes to use the work determines when the work was originally published, he or she can determine whether the work is still protected. Finally, the Library of Congress can be a good research tool for determining when works were originally published.

What's your take on Creative Commons licensing?

Miles Feldman: Creative Commons was founded in 2001 as a clearinghouse for copyright licensing. Although widely regarded as a valiant effort, there are many critiques of the Creative Commons platform. First, there are many variations in the types of licenses and permissions granted by the website. Second, if an author chooses to allow his or her work to be licensed through Creative Commons and then realizes that the work has gained popularity and could be more profitable through traditional licensing channels, the author may remove it from Creative Commons, leaving those who relied on its licenses uncertain as to their rights. No court has ruled on whether an author who uses Creative Commons can reclaim full bundle of rights after others have licensed the work.

This interview was edited and condensed.

Associated photo on home and category pages: All Rights Reserved* by no3rdw, on Flickr


March 26 2012

March 16 2012

Publishing News: Britannica isn't dead, it's digital

Here are the publishing stories that caught my eye this week.

Information doesn't need to weigh 129 pounds

EB.jpgThe Encyclopaedia Britannica announced its final print run this week. Looking at the description of the closing print product, it's clear that its day has passed. As the New York Times reports:

"The last print version is the 32-volume 2010 edition, which weighs 129 pounds and includes new entries on global warming and the Human Genome Project." [Emphasis added.]

Some argue that Wikipedia, with its open, free, crowdsourced content, "did in" the EB. Tim Carmody over at Wired purports that Windows, not Wikipedia, caused EB's demise:

"Britannica went bankrupt in 1996, long before Wikipedia was a crowdsourced gleam in Jimmy Wales' open-access eye. In 1990, the company had $650 million in revenue. In 1996, it was being sold off in toto for $135 million. What happened in between was Encarta."

I prefer to approach the situation from a more positive angle: A group of publishing executives sitting around a boardroom table finally had an "ah-ha!" moment and realized the path to future success was of a digital nature. With print put out to pasture, EB will focus on its online and digital offerings. As described in the Washington Post:

"Online versions of the encyclopedia now serve more than 100 million people around the world, the company said, and are available on mobile devices. The encyclopedia has become increasingly social as well, [Encyclopaedia Britannica Inc. president Jorge Cauz] said, because users can send comments to editors. 'A printed encyclopedia is obsolete the minute that you print it,' Cauz said. 'Whereas our online edition is updated continuously.'"

The EB offers access to its content through a subscription model online ($69.95 annually) and through its app ($1.99 monthly). Merriam-Webster also is a subsidiary of EB — I've had my own an annual subscription to the online unabridged version of that product for a couple years now.

"But, how will EB compete with Wikipedia?" you might ask. EB president Jorge Cauz addresses this point in an interview at NPR:

"We will probably never be as large as Wikipedia because we need to concentrate on fewer topics where we can allocate scholarly knowledge. You know, we have a different assortment of contributors that really know their subject areas. We obviously put editorial processes in place so that we can actually deliver on a source of content that is factually correct and created by the experts. That, actually, is a very different value proposition than Wikipedia."

So, perhaps we shouldn't mourn the end of an era or the death of a print product, but instead celebrate a publisher that is embracing the digital age.

The future of publishing has a busy schedule.
Stay up to date with Tools of Change for Publishing events, publications, research and resources. Visit us at

Issues of fair use, from a U.S. federal court to Bizzaroland

Copyright was in the spotlight a few times this week. First up, a federal court in Nevada made a fair use ruling late last Friday. A post by the Electronic Frontier Foundation (EFF) summarizes:

"The judgment — part of the nuisance lawsuit avalanche started by copyright troll Righthaven — found that Democratic Underground did not infringe the copyright in a Las Vegas Review-Journal newspaper article when a user of the online political forum posted a five-sentence excerpt, with a link back to the newspaper's website.

"Judge Roger Hunt's judgment confirms that an online forum is not liable for its users' posts, even if it was not protected by the safe harbors of the Digital Millennium Copyright Act's notice and takedown provisions. The decision also clarifies that a common practice on the Internet — excerpting a few sentences and linking to interesting articles elsewhere — is a fair use, not an infringement of copyright."

The EFF post dives deep into the background of the case — and the copyright troll — and is well worth the read.

In other copyright news, aggregators and search engines are being called to the carpet in Germany to pay publishers for "reproducing even short snippets of articles" — the same practice the Nevada court just deemed fair use. PC World reports that proponents of the new copyright law, being written by the German ministry of justice, argue that search engines like Google make a lot of money from digital content and those revenues should be shared. Proponents also point out that such a law will "hopefully also make publishers better equipped when they need to take on sites that abuse their content, which is a problem at the moment."

Those against the law argue that publishers are shooting themselves in the foot. The PC World post reports:

"It is just a comically stupid policy, according to Joe McNamee, advocacy coordinator at European Digital Rights (EDRi). The reason publishers put their content on the Internet is so that people can access it, and punishing companies for helping people to find content is nothing short of absurd, he said via email.

"Also, if the publishers' inability to evolve in the digital environment leads to policies that allow them not to evolve, then this will ultimately be bad for them, according to McNamee."

Officials told PC World that the law could be published by April, but likely wouldn't go into effect until next year.

And in downright weird copyright news, the Belgian copyright society SABAM wants to start charging libraries fees for having volunteers read books to children. Robin Wauters at The Next Web reports:

"Twice a month, the library in Dilbeek welcomes about 10 children to introduce them to the magical world of books ... SABAM got in touch with the library to let them know that it thinks this is unacceptable, however, and that they should start coughing up cash for the audacity to read stories from copyrighted books out loud. The library rep calculates that it could cost them roughly 250 euros (which is about $328) per year to pay SABAM for the right to — again — READ BOOKS TO KIDS."

Cory Doctorow describes the situation poignantly: "The technical term for this is 'eating your seed corn' (a less technical term might be 'acting like a titanic asshole')."

PayPal comes to its senses

Da_Vinci_Vitruve_Luc_Viatour.jpgIn a follow-up to recent PayPal news, in which PayPal attempted to establish itself as the content police, the company has decided to rescind its censorship demands. PayPal's new-new terms are described in a post at TechDirt:

"Under the new policy, only books with graphic images that fall under the US-based Miller test will be affected. Going forward, PayPal will also be taking a more targeted approach to enforcement. Instead of focusing on entire classes of fiction, it will work on a book by book basis. This specific change should allow for a better process in which the affected authors can appeal the decision to remove their works while getting the individual focus such decisions deserve."

In an email sent to authors and publishers, Mark Coker, founder and CEO of Smashwords, a company directly affected by PayPal's policy changes, sums it up:

"This is a big, bold move by PayPal. It represents a watershed decision that protects the rights of writers to write, publish and distribute legal fiction. It also protects the rights of readers to purchase and enjoy all fiction in the privacy of their own imagination. It clarifies and rationalizes the role of financial services providers and pulls them out of the business of censoring legal fiction."

Got news?

Suggestions are always welcome, so feel free to send along your news scoops and ideas.

Photo (top): UBN Encyclopaedia Britannica by Ziko, on Wikimedia Commons

Photo (bottom): Da Vinci Vitruve Luc Viatour, on Wikimedia Commons


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