Fair use in US scholarly publishing

Learned Publishing

Volumn 12, Issue 4, 1999, Pages 235-244

  Orlans, Harold ^a  

^a NONE   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0348238407     PISSN: 09531513     EISSN: None     Source Type: Journal    
DOI: 10.1087/09531519950145625     Document Type: Article

References (52)

1. In 1961, the Association of American University Presses adopted a resolution on fair use principles that has subsequently fallen into disuse.
2. Scarles, C. 'Quote and be blessed.' In P. Parrinder and W. Chernaik (eds), Textual Monopolies. London: Centre for English Studies, University of London, 1997, p. 137.
3. Berman, R. America in the Sixties. New York: Free Press, 1968, pp. 15, 12, 25.
4. Society counsel Terrence Adamson agreed that 'the Society's use of the Excerpts should constitute fair use. . . . But we are not convinced that no publisher would bring the question before a court, given the narrow view of appropriate fair use held by many copyright owners and given today's litigious society. . . . Our costs . . . were quite minimal, and eliminated any potential dispute' (Change May/June 1999, p. 7). Granted, the Society might be a tempting target for litigation; it is also strongly placed to win an unwarranted suit and defend the important principle of fair use.
5. Jassin, L. and Schechter, S. The Copyright Permission and Libel Handbook. New York: Wiley, 1998, p. 27.
6. Authors Guild Bulletin Fall 1984: 19-25.
7. Are You Up to Date on Copyright Issues?, brochure. Washington, DC: American Chemical Society, 1997.
8. In trade publications, an AAP booklet says, 'Never assume fair use, no matter what the amount of material' (The Copyright Primer. Washington, DC: Association of American Publishers, 1997, p. 32).
9. Contract Services Staff information sheet to 'Dear Member'. New York: Authors Guild, 1995.
10. Regents Guide to Understanding Copyright and Educational Fair Use. Atlanta: University System of Georgia, 1997: http://www.peachnet.edu/admin/legal/ copyright/copy.html. Alhough directed mainly at educational copying, the remark is also applicable to scholarly fair use.
11. Permissions questionnaire. Charlottesville: University Press of Virginia, 18 June 1997: http://www/upress. virginia.edu/Authors/permissions-quest.html.
12. The Chicago Manual of Style, 13th edn. Chicago: University of Chicago Press, 1982, p. 124.
13. Fair Use Guidelines for Authors. Berkeley: University of California Press Journals, March 1993.
14. van Leunen, M.-C. A Handbook for Scholars. New York: Oxford University Press, 1992, p. 86.
15. Princeton University Press joined Macmillan and St Martin's Press in a successful copyright infringement suit against a Michigan photocopy shop that paid no royalties on articles it reproduced for classroom use at the request of faculty.
16. Public policy committee. Working paper on intellectual property in the electronic environment. Association of American University Presses, 16 June 1995: http://aaup.uchicago.edu/copyright.html.
17. Jassin and Schechter (n. 5), p. 27.
18. http://www.alertpub.com/reprints.html.
19. Author Guidelines. Cranbury, NJ: Associated University Presses, 1992.
20. UPA Manuscript Preparation Guide. Lanham, MD: University Press of America, 1991.
21. Memorandum for Authors. Newbury Park, CA: Sage, 1992.
22. Jassin and Schechter (n. 5), p. 27.
23. Stowe, D. 'Just do it'. Lingua Franca November/ December 1995: 36.
24. Crews, K. Copyright Law and Graduate Research 1996 (prepared for UMI): http://www.umi.com/hp/Support/ DServices/copyright/html.
25. Chicago Manual, p. 123.
26. See n. 11.
27. See n. 19.
28. 1992 letter from K to the publisher.
29. See n. 11.
30. Jassin and Schechter (n. 5), p. 27.
31. Chicago Manual of Style, 14th edn. Chicago: University of Chicago, 1993, p. 147.
32. William Maher, President, Society of American Archivists, 7 November 1997, letter to members of the Senate and House Judiciary Committees: http://www. archivists.org/governance/resolutions/copyextn.html.
33. Copyright primer (n. 8), pp. 30-1.
34. For example, 'Authors should not rely on the fair use provision to justify quoting from unpublished manuscripts and letters.' American Medical Association. Manual of Style. Baltimore: Williams & Wilkins, 1998, p. 124.
35. Chicago Manual (1982), p. 124.
36. American Medical Association. Manual of Style, pp. 121, 124.
37. International Committee of Medical Journal Editors. 'Uniform requirements for manuscripts'. New England Journal of Medicine 1991 (324): 428.
38. Chicago Manual (1993), p. 148.
39. Publication Manual, 4th edition. Washington, DC: American Psychological Association, 1994, p. 299.
40. Chicago Manual (1993), p. 147. I am also indebted to Robert A. Baron for information on the reproduction of images.
41. American Medical Association. Manual of Style, p. 125.
42. Jassin and Schechter (n. 5), p. 33.
43. 'The AAUP maintains that asssessments of whether a use is fair should . . . focus primarily on . . . market impact . . .' (note 16), a disputable position.
44. Sanford Thatcher, Chairman of the Association of American University Presses' Copyright Committee, writes, 'It is not certain . . . that a university could not successfully argue for having the scholarly publications of its faculty . . . construed as work made for hire' (letter, Chronicle of Higher Education 5 August 1992). More moderately, a committee of the California and New York state and New York City university systems reasons, 'Rather than assign all rights to . . . publishers . . . the university could support the professor in the effort to retain rights to reproduce and distribute . . . [his] work for educational and research purposes throughout at least . . . [his] home campus' (Consortium for Educational Technology for University Systems. Ownership of New Works at the University. Seal Beach, CA: California State University Trustees, 1997, p. 20). Responding to such suggestions, the Association of American University Professors upholds the rights of faculty 'as the copyright owner of works . . . created . . . at the faculty member's own initiative for traditional academic purposes'. New ownership forms that may develop in distance learning, videotaping, and other new types of instruction, should be detailed in written agreements ('Distance education and intellectual property'. Academe May/June 1999: 43-5).
45. Sanford Thatcher, Chairman of the Association of American University Presses' Copyright Committee, writes, 'It is not certain . . . that a university could not successfully argue for having the scholarly publications of its faculty . . . construed as work made for hire' (letter, Chronicle of Higher Education 5 August 1992). More moderately, a committee of the California and New York state and New York City university systems reasons, 'Rather than assign all rights to . . . publishers . . . the university could support the professor in the effort to retain rights to reproduce and distribute . . . [his] work for educational and research purposes throughout at least . . . [his] home campus' (Consortium for Educational Technology for University Systems. Ownership of New Works at the University. Seal Beach, CA: California State University Trustees, 1997, p. 20). Responding to such suggestions, the Association of American University Professors upholds the rights of faculty 'as the copyright owner of works . . . created . . . at the faculty member's own initiative for traditional academic purposes'. New ownership forms that may develop in distance learning, videotaping, and other new types of instruction, should be detailed in written agreements ('Distance education and intellectual property'. Academe May/June 1999: 43-5).
46. Sanford Thatcher, Chairman of the Association of American University Presses' Copyright Committee, writes, 'It is not certain . . . that a university could not successfully argue for having the scholarly publications of its faculty . . . construed as work made for hire' (letter, Chronicle of Higher Education 5 August 1992). More moderately, a committee of the California and New York state and New York City university systems reasons, 'Rather than assign all rights to . . . publishers . . . the university could support the professor in the effort to retain rights to reproduce and distribute . . . [his] work for educational and research purposes throughout at least . . . [his] home campus' (Consortium for Educational Technology for University Systems. Ownership of New Works at the University. Seal Beach, CA: California State University Trustees, 1997, p. 20). Responding to such suggestions, the Association of American University Professors upholds the rights of faculty 'as the copyright owner of works . . . created . . . at the faculty member's own initiative for traditional academic purposes'. New ownership forms that may develop in distance learning, videotaping, and other new types of instruction, should be detailed in written agreements ('Distance education and intellectual property'. Academe May/June 1999: 43-5).
47. For some copyright owners, such as Coca-Cola, Disney, and film studios, an editor writes, 'there simply is no such thing as fair use. . . . It's scholarly suicide to ask those types of multinationals for permission; nonprofit scholarly use does not exist in their world.'
48. Suits by 'the big guns' have 'had a ripple effect among publishers, particularly scholarly publishers', this editor said.
49. A good example is 'Readin' country music', a special issue of South Atlantic Quarterly Winter 1995, later converted into a book (Ticchi, C., ed. Reading Country Music. Durham, NC: Duke University Press, 1998). The song lyrics quoted in these publications were closely examined by editors and the Duke University counsel to determine that each was fair use. Ticchi wrote: '. . . music publishers are notoriously unwilling to grant permission for quotation of lyrics without. . . prohibitively expensive fees. . . . Yet free speech is abrogated when scholarly interpretive arguments must . . . exclude the primary evidence on which they are based, or . . . reduce [it to] . . . paraphrase. . . . [T]he principle of fair use is being upheld here' (South Atlantic Quarterly, ibid., p. 5). Kay Alexander of Duke University Press, who recounts this episode, states that no copyright holder has complained about either the journal or the book.
50. A good example is 'Readin' country music', a special issue of South Atlantic Quarterly Winter 1995, later converted into a book (Ticchi, C., ed. Reading Country Music. Durham, NC: Duke University Press, 1998). The song lyrics quoted in these publications were closely examined by editors and the Duke University counsel to determine that each was fair use. Ticchi wrote: '. . . music publishers are notoriously unwilling to grant permission for quotation of lyrics without. . . prohibitively expensive fees. . . . Yet free speech is abrogated when scholarly interpretive arguments must . . . exclude the primary evidence on which they are based, or . . . reduce [it to] . . . paraphrase. . . . [T]he principle of fair use is being upheld here' (South Atlantic Quarterly, ibid., p. 5). Kay Alexander of Duke University Press, who recounts this episode, states that no copyright holder has complained about either the journal or the book.
51. A good example is 'Readin' country music', a special issue of South Atlantic Quarterly Winter 1995, later converted into a book (Ticchi, C., ed. Reading Country Music. Durham, NC: Duke University Press, 1998). The song lyrics quoted in these publications were closely examined by editors and the Duke University counsel to determine that each was fair use. Ticchi wrote: '. . . music publishers are notoriously unwilling to grant permission for quotation of lyrics without. . . prohibitively expensive fees. . . . Yet free speech is abrogated when scholarly interpretive arguments must . . . exclude the primary evidence on which they are based, or . . . reduce [it to] . . . paraphrase. . . . [T]he principle of fair use is being upheld here' (South Atlantic Quarterly, ibid., p. 5). Kay Alexander of Duke University Press, who recounts this episode, states that no copyright holder has complained about either the journal or the book.
52. At present, there are no US guidelines comparable to those agreed upon by the Society of Authors and the Publishers Association; to my knowledge, no group of universities, publishers, scholars, or writers has issued any.