[Home]AcademicFairUse

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Artists aren't the only ones to experience the broadside of CopyrightLaw and the narrow wedge of FairUse. Academics and educators also must obey the copyright law. While many myths about educational use exist, generally, educators may only use portions of copyrighted works "when the purpose and character of the use is eduational in nature, the work has been previously published, they are not using a substantial part of the entire work, and the marketability of the work is not impaired by the use." (Levering, 1999, p. 1314) That being said, fair use cases are evaluated case by case. Educational usage does not get a blanket approval. For instance, for the most part educational copying is limited to non-profit educational institutions (Levering, 1999).

Academia benefits from a restrictive fair use in at least one important case (Thatcher, 2000). In many cases, the research done is so specialized that there is not enough of a market outside the insitution to justify interest from commercial publishers. The reward for the authors in this case is not monetary, but rather to RewardReputation which might further them in their career. The universities that fund these authors also benefit by making the results of their investments known to the world. Thus, in order to publish new knowledge many universities have their own presses. These presses often handle all the rights transferred to them by the authors. And like every other press, they use fair use to protect themselves from abuse, since they must operate as businesses as well.

University presses treat fair use differently than commercial presses (Orlans, 1999). For one, they are more likely to grant license to quote. Moreover, they are more likely to consider the context of quotations before charging infringement. To quote Cambridge University Press, "We really do read the author's text and think about the use of quotations. . . . [T]he two or three hours... this might take...is far better spent than the five minutes it would have taken . . . to count individual quotations and then turn, robot-like, to those damned guidelines." (Orlans, 1999) As this quote suggests, fair use guidelines are not always very useful. While they do offer the hope of simplying the complex terrain of fair use (Levering, 1999), they also make academic authors complacent to the shrinking power fair use exemptions (Frazier, 1999). On the other hand, the alternative is more insecurity. A cautious publisher might unnecessarily burden themselves by obtaining written permission for almost all quotations or their replacement by paraphrasing (Orlans, 1999). Orlans cites the example of Ronald Berman who obtained permission for quotations of 15, 12, and 6 words.

Requesting permission unnecessarily may backfire, however. As the widely used Chicago Manual of Style (University of Chicago Press, 1982, p. 124) states:

The right of fair use is a valuable one to scholarship, and it should not be allowed to decay through the failure of scholars to employ it boldly.... Far from establishing GoodFaith and protecting the author from suit or unreasonable demands, a permission request may have just the opposite effect. The act of seeking permission establishes that the author feels permission is needed, and the tacit admission may be damaging to the author's defense.

Finally, despite what's been said, most academics publish with commercial presses that demand copyright privileges from authors, often before they will even look at a preprint.

References

Carrigan, D. P. (1996). Commercial journal publishers and university libraries: Retrospect and prospect. Journal of Scholarly Publishing 27(4), 208-221.

Cox, J. (1998). The great journals crisis: A complex present, but a collegial future. Logos, 9(1), 29-33.

Elliot, R. (1997) The impact of electronic publishing in the scientific information chain. IFLA Journal, 23(5/6). Available from http://www.inasp.info/psi/ejp/elliot.html

Frazier, K. (1999) What's wrong about fair-use guidelines for the academic community? Journal of the American Society for Information Science, 50(14), 1320-1323.

Levering, M. (1999) What's right about fair-use guidelines for the academic community? Journal of the American Society for Information Science, 50(14), 1313-1319.

Orlans, H. (1999). Scholarly fair use: Chaotic and shrinking. Change, 31(6), 52-60.

Thatcher, S. G. (2000). Fair use: a double-edged sword. Journal of Scholarly Publishing, 32(1), 3-8.

University of Chicago Press. (1982) Chicago Manual of Style (13th ed.). Chicago: University of Chicago Press.


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