In order to gain a better understanding of copyright law for my first project, I examined specific aspects of Cohen and Rosenzweig’s Ch. 7, ”Owning the Past”, but I had not read the entire chapter until this week. The gradual growth of copyright from its beginnings in 1783 through the current day is amazing, and disconcerting. One can only imagine how current laws will be amended as 2018 approaches, and the continued growth of the web makes the issue even more complicated.
One part of this chapter I want to focus on is Section 107 of the 1976 Copyright Act that details “fair use” of a copyrighted work. I spent a significant amount of time going over the four factors that must be considered when contemplating the fair use of a work protected by copyright. The first three factors are fairly straightforward, but the final factor in the amendment ia a bit more complicated. The fourth point in the amendment states that the “effect of the use upon the potential market for or value of the copyrighted work” must be determined. How exactly is the “effect” meant to be determined? I am not sure. One point Cohen and Rosenzweig made, and I considered very seriously in my first project, was that all of the factors of fair use must be satisfied, not simply one or two. I attempted to resolve my copyright dilemma with a few solutions, one involved contacting the journals I wished to use on my website. I also realized, and that, due to certain copyright restrictions, not every visitor to my site would be able to access certain documents or images. Although the likelihood of being sued for copyright infringement is minimal, it would not be worth the risk.
The second reading I want to discuss is John Willinsky’s ”The Access Principle: The Case for Open Access to Research and Scholarship.” I have been a strong supporter of open access to research and scholarship, especially within the sciences, for many years, and over time this field has made its journals and databases more accessible to the public. Unfortunately, I have not seen the same type of progress in the humanities, and I don’t quite understand the resistance.
In Chapter 1 of Willinsky’s book, Rudy Baum (p. 7) makes a strong statement against open access when he argues that the “open-access movement’s demand that an entirely new and unproven model for STM publishing be adopted is not in the best interest of science.” He goes on to say that “it’s human nature to want something for nothing. Unfortunately, excellence rarely comes without a price.” Baum’s comments were made in 2004, and attitudes have changed significantly in the field of science, technology, and medicine, as far as access to publications and research, but his comment struck a cord with me when considering the humanities. Why keep humanities scholarship locked away behind restricted databases? Is the issue about money? Maybe. Why aren’t scholars fighting to have their work accessible by the public? Are they concerned that someone will criticize or question their ideas? I am not sure of the exact reasons. There is some excellent research being done in every field of the humanities, and I hope that the restrictive barrier that has been placed around humanities scholarship will be removed so that these publications will be accessible to a much broader audience.
I read the fair use section over and over… and over again for my first project, and came to the conclusion that pretty much none of the images I needed would qualify as fair use. Copyright seems to be one of those things with more exceptions than rules!
Baum’s contention that excellent work will not be done unless people are paid is rational, but I don’t think that it captures the motivation of most researchers. Are humanities’ researchers really only in it for the money?
Have you looked at JSTOR’s usage statistics? It’s millions of hits every month. While the authors might not be in it for the money, anything attracting millions of users is going to be contentious in terms of making the content completely open access. There is too much money at stake. A subscription to JSTOR’s full run starts at 40,000 a year, depending on the type of institution. JSTOR also has a “Data for Research” program that allows access to the corpus. I believe that sometimes these resources are more open than we are willing to give them credit for.
Geri,
Great post. I am also wondering about what will happen when 2018 rolls around and I do not believe if, but what copyright issues arise.
While I don’t know the exact methods for determining the ‘effect of use’ with regards to copyrighted works, I would guess it would be some sort of comparing and contrasting the work’s current economic or academic ‘footprint’ with that proposed by the potential user. Any overlap between the existing and proposed footprints would have far more effect on the owner(s) of the works than two independent footprints; if the potential user’s area of effect resides totally outside the owner(s) current economic/academic interests, then they would lose nothing they already had, though future profits would also need to be examined.