Meera Nair

to promote the progress

In Posts on September 16, 2012 at 2:32 pm

A colleague forwarded a dilemma to me; his publisher (of a scholarly work) was requiring copyright clearance for a map taken from an out-of-print book issued by a publishing company no longer in existence. Since the author had died in 1958, I duly calculated life plus fifty and declared the work as in the public domain.

And then I discovered this was not for a Canadian publication. As the Center for the Study of the Public Domain at Duke University points out, in the United States “only works that were published before 1923 are conclusively in the public domain.”

The operative word there is conclusively. It is conceivable that work dated after 1923 is in the public domain if certain copyright formalities were not complied with. However, assuming that this material is still under copyright, fair dealing and fair use beckon.

Canada benefits from a consistent message courtesy of our Supreme Court: that fair dealing is a user’s right and research should be given a “large and liberal interpretation.” Addedly, our Justices insist that Canada not draw artificial distinctions between commercial and non-commercial behaviour. Even before the notable decisions of the new millennium, a Court of Appeal had decreed fair dealing in the use of a copyrighted image as part of a newer creation, for a mass media publication. The Court declared that the use of the image served the purpose of the story, which was to indicate contrast over time. And, the manner in which the image was used ensured that it in no-way competed for the market of the original image.

In the matter at hand, the map appears to be a sketch of the political boundaries of early 20th century Southeast Asia, with shipping routes and distances marked in. A fitting backdrop to any contemporary discussion of trade in that region. The purpose of the use melds with fair dealing’s category of research. The amount taken is reasonable – when discussing regions, it may be necessary to reproduce an entire map to convey the geographic boundaries and political nuances of the time. (David Vaver points out this challenge for both images and poetry; see Copyright Law.) Given that the original book itself is no longer available, reproducing the map in an academic publication could hardly be seen as unfairly competing with the original work. And, while some might recommend simple substitution with an older map that is free of copyright, the contemporary author presumably has reason to choose this map for his work. Academic freedom has a place in this discussion.

But this is Canada, and the problem lies with the United States. Americans have not been so lucky with their Supreme Court; in part because the United States nurtured fair use and (as might be expected) suffered through the unpredictability of its developmental years. I deal with this issue in Fair Dealing at a Crossroads; I draw heavily from the work of Barton Beebe. Beebe conducted the first systematic analysis of all American fair use case law, spanning 1978-2005, and illustrated that fair use is not as unpredictable as previously thought. Furthermore, Beebe identified where the United States lost its way in regards to an overt emphasis upon commercial implications of fair use and indicated that more nuanced investigation of fair use is becoming the norm. Following Beebe’s work, scholars continue to examine the changing face of American fair use and suggest that cohesion and balance are taking form south of the border.

For instance, Pamela Samuelson examines fair use by way of policy-relevant clusters and determines some consistency within those clusters. In examining uses that set historical context, she points to the case Bill Graham Archives v. Dorling Kindersley Ltd. (2006), where seven small-scale reproductions of Grateful Dead concert posters were reproduced without authorization. The action was deemed fair use:

The Second Circuit noted that biographical works and cultural histories, such as this one, were types of works that typically “require incorporation of original source material for optimum treatment of their subjects.”  …  Dorling Kindersley used the images “as historical artifacts to document and represent the actual occurrence of Grateful Dead concert events.”  This was transformative because it was “plainly different” from the original purpose for which the posters were created … (Samuelson, 2573).

While Fair Use in the United States has a vast history, and spans many policy clusters, this trend to sanctioning unauthorized reproduction for transformative uses has been further corroborated. Neil Netanel writes “Many thought that Bill Graham Archives was an aberration … But six months later, the Second Circuit struck again [further emphasizing] that whether a work is transformative is key to determining fair use (p.761).”

And lest we forget, the United States has a constitutional mandate for copyright: “To promote the progress of Science and Useful Arts.” That overarching purpose is particularly relevant when discussing fair use of orphan works – those for whom the copyright owner is unidentifiable or untraceable – where the copyright protection brings no returns to anyone yet that same protection impedes further creativity.

Update: October 8, 2012. The publisher has agreed that seeking copyright clearance for the map is unnecessary.

References

Barton Beebe, “An Empirical Study of U.S. Copyright Fair Use Opinions: 1978–2005.”  U. Pa. L. Rev. 2008.

Meera Nair, “Fair Dealing at a Crossroads,” From Radical Extremism to Balanced Copyright … (ed. Michael Geist) 2010.

Neil Netanel, “Making Sense of Fair Use,”  Lewis and Clark Review, 2011.

Pamela Samuelson, Unbundling Fair Uses, Fordham Law Review, 2009.

David Vaver, Copyright Law, 2000.

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