Fair use letter in The Chronicle
A couple of weeks ago I complained about an editorial in The Chronicle of Higher Education that misrepresented copyright policies and ignored fair use altogether. I adapted that post into a letter to the editor, published in this week’s Chronicle. Since The Chronicle puts most of its content behind a pay wall, I’ve reproduced the letter as printed here:
Fair Use vs. Fraud
To the Editor:
I’m writing with dismay about “Strange Tales From the Trenches” (Careers, May 11). In it, two professors — Daniel Ennis and Arne R. Flaten — offer their stories of close encounters with academic misconduct and, in doing so, suggest a degree of moral equivalency between the two case studies.
The second case is clearly flagrant fraud, with a candidate for a position falsifying his curriculum vitae and lying to the search committee. But the first case, which the article treats as equivalent in generating moral outrage and ethical concerns, seems much more ambiguous to me, with the accusing professor being too quick to judge what he clearly has little expertise in.
In accusing an unnamed author of copyright infringement for an art-history book, Professor Flaten writes: “In these days of pirated music, misrepresented memoirs (James Frey), fabricated news stories (Jayson Blair), fictitious provenances, and falsified résumés, the present situation rings all too familiar. I do not suggest that any of the participants knowingly disregarded legal statutes with spurious intent, but the careless use of unauthor-ized images is tantamount to plagiarism and constitutes a serious breach of copyright law.”
This statement is so wrongheaded and uninformed that I’m surprised The Chronicle’s editors allowed it to be printed. The charge of plagiarism seems pretty ridiculous: Professor Flaten notes that the book included “detailed documentation” and “copious footnotes.” Since I presume that the images he’s talking about mostly predate the 20th century, we should assume that the actual content is not still copyrighted (it would have lapsed into the public domain). Rather, the museums and archives holding the art have copyrighted the reproductions of those works to be licensed to publishers, postcard companies, etc.
Is it “a serious breach of copyright law” to publish a copyrighted reproduction of an image in an academic text that analyzes and provides commentary on that image? Arguably not — I would call it fair use, a crucial phrase that does not appear in this article. The holders of rights to the reproductions might disagree, but that’s a matter for the courts to interpret, not for moralistic professors to judge as tantamount to plagiarism and compare to the behavior of Blair or Frey.
Some scholarly organizations have been working to assert the fair-use rights of researchers for years, including the major organization in my field, the Society for Cinema & Media Studies. … It is now updating its policy statement on fair use to account for new developments in digital publication and pedagogy, a project I’ve been working on for the past year. The Chronicle should know that the May 11 article does not get all the facts right, as it published an account last year of art historians’ working to change current practices and assert fair use to allow for more publications at reasonable costs (“Picture Imperfect,” The Chronicle, August 4, 2006). …
As many others have argued, fair use is a muscle that retains strength only through exercise and practice. We need to wave the fair-use wand at any example where it might apply: Even if a court rules against its use, you can’t simply accept without a fight the assertion of control by those who own rights, nor can you judge a scholar as a plagiarist or a fraud for trying to publish a work containing images in the public domain.
I wish The Chronicle had not allowed authors to make unsubstantiated accusations and moral judgments that threaten to undermine the scholarly activities of criticism and sharing knowledge that we all hold to be valuable.
Filed under: Copyright, Fair Use | 3 Comments