Re: Scholarly communication, copyright, and fair use

[Laura Young Bost <lbost@utpress.utexas.edu>]

I would like to point out that there already exists a mechanism 
for scholarly (or any) authors to allow their works to be freely 
used--it's called Creative Commons.

It seems impractical from a legal standpoint to have guidelines 
for "fair use" for academic books that are different from "fair 
use" guidelines for other books.

Laura Young Bost, Rights Manager
University of Texas Press

***********************************

Kevin L Smith wrote:
> I posted a reply to Sandy's comments about peer-review on my
> blog, so interested readers can go there to read those remarks.
> The thrust of my reply is that Sandy is address himself to a
> debate that is distinct from the point I am trying to make in my
> post.
>
> Upon further reflection, it seems like a good idea (list readers
> may disagree!) to make a few comments about Sandy's invocation of
> Judge Leval's highly influential article in his comment.
>
> First, it is worth pointing out that this 25-year-old law review
> article is not the final word about fair use. For one thing,
> Judge Leval never claimed that only transformative uses could be
> considered fair use. Had he made that claim, he would have been
> contradicting the plain language of the statute, and he was too
> smart a jurist to do that. Basically, his article is a reflection
> on the analysis of the first fair use factor, provoked by the
> reversal, on appeal, of a copyright decision he had made and his
> desire to argue that he had gotten the case right. We should
> remember that fair use is a highly fact-dependant analysis based
> in equity; no theoretical construct will ever be able to fully
> define it.
>
> Second, when the Supreme Court cited Judge Leval's article in
> "Campbell v. Acuff-Rose," they unfortunately set off a tendency
> to insist that all fair uses had to be transformative. The
> result, however, has not really been a narrowing of fair use so
> much as an expansion of the definition of transformation. The
> recent decision in the "Turnitin" case that found that a merely
> "repetitive" copying of papers submitted to an anti-plagiarism
> service was transformative because of the beneficial social
> purpose the service used those papers to provide is certainly a
> far cry from what Judge Leval was imagining. This tendency has
> really been good news for findings of fair use, but it has led,
> in my opinion, to some interesting reasoning. I have no doubt
> that, if the defendants in the Georgia State litigation prevail
> on fair use, there will be language similar to that used in
> "Turnitin" finding that the Georgia State use is transformative.
>
> Finally, one of the best reasons to read the article on which my
> blog post is based is that the author directly engages Judge
> Leval, arguing that, while the Judge successfully revisioned the
> first fair use factor in a helpful way, his approach to the
> second factor was too narrow and based on the limited approach to
> that factor that had prevailed for some years. Kasunic is really
> trying to do for the second factor what Judge Leval did for the
> first -- return to the purpose of copyright itself and try to
> understand how an analysis of the nature of the original work
> fits into the overall intent of copyright law and the fundamental
> reason that fair use is part of that law.
>
> Kevin L. Smith, J.D.
> Scholarly Communications Officer
> Perkins Library, Duke University
> PO Box 90193
> Durham, NC  27708
> 919-668-4451
> kevin.l.smith@duke.edu
> http://library.duke.edu/blogs/scholcomm/