Publishing Digital Fair Use

Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review.

I was in the offices of a major New York publisher earlier this week, speaking with a business development director for online digital products. Although for me it was a foggy, too early in the morning conversation, one inquiry that I did manage to eke out was whether the publisher had any intention of permitting fair use of texts from their digital repository, which is capable of providing pay-per-view and browse-inside functionality.

Technically, support for fair use would be awkward in real-world implementations, but not impossible. For example, it might be feasible to display very short snippets in a discovery phase of search, but clicking on a specific chosen selection could expand the text around the initial snippet to permit a more significant, but still limited, text clipping service. While this is not as flexible an allowance as one would like (the use of a substantial portion of a text might still be fair use), it might be an approximation worth some experimentation. Additionally, perhaps a user could petition for access to a greater amount of material than the pre-set algorithm permitted; if this route was straightforward and efficient, then it need not be frustrating). There are some entry paths for automated abuse that would have to be frustrated, but they could be mitigated with reasonable assurance.

Of the entire conversation, certainly the greatest disappointment to me was the obviously incomplete understanding held by my publishing colleague of what fair use actually is — in other words, its fundamental characteristics, such as its relativistic nature and lack of definitional precision, the 4-point multiple-factor test (see the good discussion at the University of Texas site, about halfway down, “Using the Four Factor Fair Use Test”), and what the doctrine aims to sustain. My sudden need for a basic, conceptual presentation took me by surprise, and given the fact that I was speaking to a whip-smart VP of a major publishing house, I felt it was an unfortunate one.

I have forwarded a couple of excellent introductory texts, Bound by Law (a comic from Duke University’s Law School), and Fair(y) Use Tales (a video distributed from Stanford and authored by a professor at Bucknell University). I also invited a discussion at the house with nonpartisan experts to discuss how fair use might work. I expressed the hope that a sensible support of fair use by a publisher against their digital text repository service for in-copyright material would be a market-defining act; that it would drive significant traffic for backlist titles as well as the frontlist; that the risk of content loss would be acceptably low and the need for intervention infrequent; that the benefits both to culture, and to shareholders and owners, would be compelling.

I fervently hope that trade publishers learn from the music industry; inappropriately locked content drives use away. It is easy enough to perceive the lessons; what my conversation made me aware of was how much more difficult it is to layer the additional application against one’s own industry. But there is not much time.