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.
tags: publishing
| comments: 7
| Sphere It
submit: 
0 TrackBacks
TrackBack URL for this entry: http://blogs.oreilly.com/cgi-bin/mt/mt-t.cgi/6024
Comments: 7
One of the most unfortunate developments in the intersection of the publishing and web worlds was when the ALA and publishing trade associations freaked out over Google Print. It seemed like such a golden opportunity, but the perceived loss of control was overwhelming to the old guarde. Whether due to Google's diplomacy efforts at BEA and other events, or due to tech savvy Young Turks taking the reins, it's been good to see Google make headway. But that inertia at the beginning was ridiculous and, honestly, embarrassing.
I think your conversation with the whip-smart VP could have happened at just about any publishing house in the country.
peter, here's a piece of (unsolicited) advice:
stop trying to do mouth-to-mouth on them, and
let the damn dinosaurs die. we don't need 'em.
-bowerbird
Fair Use is absolutely critical to any healthy media use. Perhaps many publishers have forgotten the role played by 'fair use' in the making of many, perhaps most, books. But in our time, when systems are tending to replace conventions and custom, I wonder whether the crucial discussion really needs to take place with the various 'Collection Agencies'. I fear that they may be (even) more hidebound than many publishers, but it would good to be proven wrong on this. Could some rights agency with the interests of satirists, critics, and geniuses in mind, play an aggressive role in articulating the needs of digital fair use? It would be nice to think so.
One of the fascinating aspects of fair use is that its limits and potential are clearly redefined and shaped by technological changes. YouTube etc has shown the very real possibilities for a limited fair use in the medium of video.
I can appreciate the attraction of a technological solution to fair use issues that might get publishers get with the program. The problem is that there is no technological solution. Artificially restricting access to snippets of content is putting limitations on fair use that do not exist in law. Asking users to get publishers' permission to use more is also imposing an additional burden on what is, after all, supposed to be a *right* of fair use. How likely is a publisher to say 'yes' when they find out that your fair use includes a critique of their activities (see http://www.mediaed.org/about and look at the "History" section at the bottom of the page and ask yourself if MTV would have approved these uses as "fair" if asked in advance)?
The Bruno Latours, Weibe Bijkers and Trevor Pinches of the world have been pointing out for years that technological systems reify social structures. I don't want to see a second-rate version of fair use reified to make the publishers happy.
Fair Use is decided by the four-step test. The quantity of work used is only one of the tests. A technological system that limits how much of a work you can access in the name of Fair Use is working directly against Fair Use, not supporting it.
Fair Dealing in the UK and elsewhere is a formalization of Fair Use that sets limits on how much of a particular kind of work you can use, and in what circumstances. Of course over time these limits have been reduced time and time again.
So technological or legal limitations cannot protect Fair Use. Quite the opposite.
Another good fair use guide is this one from Georgia.
Authors often have an interest in promoting fair use of their work -- would it make sense to get some fair use language into the author's contract with the publisher?
Post A Comment:
STAY CONNECTED
RECENT COMMENTS
- Don Marti on Publishing Digital Fair Use: Another good fair use g...
- Rob Myers on Publishing Digital Fair Use: Fair Use is decided by ...
- Jerome McDonough on Publishing Digital Fair Use: I can appreciate the at...
- Adam Hodgkin on Publishing Digital Fair Use: Fair Use is absolutely ...
- bowerbird on Publishing Digital Fair Use: peter, here's a piece o...
- Charlie Park on Publishing Digital Fair Use: One of the most unfortu...
- Berislav Lopac on Publishing Digital Fair Use: Funny you would refer t...
RADAR TOPICS
Berislav Lopac [11.03.07 04:23 PM]
Funny you would refer to a comic and a video as "texts". :)