Copyrights and Quotes in Academic Work
So here’s yet another case of over-the-top copyright restrictions involving something I wrote. In December 2014, the Whitehead Research Project held an excellent conference on Whitehead’s short book Symbolism (which Amazon also sells as an ebook for 99 cents). I was one of the speakers at the conference; I posted an uncorrected version of my talk, “Whitehead on Causality and Perception,” as a blog entry. As has happened with previous conferences sponsored by the WRP, the essays are supposed to be collected in a volume. As far as I knew, the volume was proceeding apace. But today I received the following from the editors in my email: “As we are only allowed 500 words worth of quotes from any single work within the volume, ALL short Symbolism quotes within your chapter must be paraphrased or removed entirely. This is an unfortunate and difficult requirement, but the alternative is that you pay Simon & Schuster the fee for quotations associated with your chapter, which would also delay the publication of the entire volume up to a year.”
That’s Steven Shaviro (Wayne State) in a blog post entitled “More Copyright Idiocy.” He adds:
This strikes me as completely unwarranted. And actually, I am not quite sure even how to interpret it. Does it mean that no more than 500 words from Symbolism may be quoted in each individual article? Or that no more than 500 words from Symbolism (or any other single text of Whitehead’s) may be quoted in the entire volume of essays?
This does seem like an unreasonable restriction for an academic volume. Have other readers had similar experiences? Have publishers been open to waiving such fees?
Publishers lie about what is “fair use.” I kid you not. They will tell you that you cannot use more than a certain amount of material without having to pay for it, when that is not actually the case. Consult a good IP (i.e., intellectual property) attorney to see what is actually “fair use.” Scholarship would grind to a screeching halt if people couldn’t use more than 500 word of a copyrighted text without having to pay for it. These purported rules are particularly offensive given the cavalier attitude some academic publishers have adopted toward plagiarized material (see: http://pietyonkierkegaard.com/2012/08/23/kirmmses-cover-up/ ).
If I received such a communication, I would consult with the legal department at my institution.
I’m not sure I understand the facts here. Is the publisher of the conference proceedings going to use only the Simon and Schuster edition as a cited source for quotations? If so, is that particular S and S edition, which will be cited uniformly throughout the proceedings, under copyright? Then, it might not matter if the Whitehead text is also available in numerous other copyright-free editions.
There are a number of things unclear about the situation I reported in my own blog, and which is reblogged here. As far as I can tell, it is the publisher of the volume of essays arising from the conference (Lexington Press, I think, but I am not sure) who told the editors of the volume that they couldn’t publish more than 500 words of citation from any copyrighted volume by Whitehead without payments to Simon and Schuster (whose imprint The Free Press publishes and holds the copyright on many Whitehead volumes). It is obvious that under such standards, nearly all works of philosophical commentary, quoting and explicating or responding to previously published texts, would become impossible.
So I am unable to determine at the moment if it is Lexington Press or Simon and Schuster which is insisting upon this restriction.
But there is the further complication that Whitehead’s book Symbolism is not published by The Free Press in any case; it is published by Fordham University Press (though the copyright page says it is copyrighted by Macmillan, which seems to be part of the same corporate entity as Simon and Schuster). So I have no idea what is going to happen.
The first commentator is right. Copyright owners lie – frequently – about fair use (there is no prohibition against overclaiming copyright. I’m not making that up, either). Fair use as codified HAS NO SPECIFIC PERCENTAGE Or WORD COUNT or any other such bright line for “how much is too much” (ex. when people say you can “quote no more than 10%,” that’s also not true) There are cases where use of an entire work was judged fair use. It’s a four-factor test, with the amount of material being used only one of the four, and the factors are supposed to be decided on a case-by-case basis. Most courts weigh a different factor – whether the use is “transformative” – most heavily Education is supposed to be favored (though it’s often not), and I would argue (and most would agree) that critical scholarship/commentary should be favored as well. I looked up the book in question – looks like it came out in 1927. So it’s still under copyright (in yet another example of copyright idiocy: term limits that are too long).
My advice is to find an attorney who knows something about IP to write them a letter back explaining what fair use actually means.
This story involves the series editor and/or Lexington press citing some standard. Yes, publishers give authors rather arbitrary guidelines because, as you point out, the Fair Use doctrine is itself rather vague. I would imagine that, from the POV of the press, it is best to be draconian and avoid litigation. In my experience, there is often room for negotiation. But I don’t see evidence of anyone lying here.
OP, before you go off consulting an attorney (which would probably cost more than buying the rights!), why don’t you confirm who is publishing the volume and ask them for more details concerning their policy and whether it applies to the volume as a whole or individual papers?
The problem here seems to be that only Lexington (or whomever is publishing the collection) is really in a position to challenge this absurd requirement. Individual authors can complain all they want, including soliciting letters from attorneys, but as long as Lexington says that they must comply with this rule in order to have their papers included in its volume there’s not much they can do. And as a publisher itself, Lexington may conclude that it’s not in its interest to push back against an overly restrictive interpretation of fair use. There may not be much hope unless it’s possible to find another publisher for the volume.
As I understand it, fifty years after the death of an author, all of their writings become part of the Public Domain.
Whitehead died in 1947, so all of the Whitehead quotes are exempt, and these are the longest ones.
Giving it a quick scan, I would venture to say that all of the other quotes are short and don’t add up to more than 500 words.
So, your piece is good to go as it stands.
Oops, in the UK, they have a 70 years after the death of the author Public Domain rule.
So, ANW’s works are still copyrighted until the end of 2017.
Since the author is tenured they might consider refusing to publish with a press that is going to impose limits like this. (Send it to an open access journal instead?) Obviously that doesn’t solve the problem for untenured scholars, but if tenured scholars press back on issues of this nature, then there will in time (presumably) be fewer such cases overall. (Fwiw, I haven’t had positive experiences with the press [Lxngtn] myself.)
I am also surprised the volume editors would try to impose this on their authors, though I suppose once a project is perceived as rolling down the tracks it’s hard to jump out of the train.