What if it is not a u.s. based publisher? what if, for instance, it is a u.k. or french publisher? might that change the situation a bit? -- jeremy hunsinger Center for Digital Discourse and Culture Virginia Tech www.tmttlt.com () ascii ribbon campaign - against html mail /\ - against microsoft attachments http://www.stswiki.org/ sts wiki http://transdisciplinarystudies.tmttlt.com/ Transdisciplinary Studies:the book series I am always doing that which I can not do, in order that I may learn how to do it. -Pablo Picasso

(My first contribution. You can tell me if it should be my last) All, I would suggest that, at least under US law, the question is much fuzzier that it may first appear (and that is a very bad thing, but that's a different email). Categorical fair use exemptions are few and far between. Educators have, I think, generally assumed greater fair use exemptions than actually recognized by the courts or the copyright office. For instance, although not strictly a fair use case, only very recently has the copyright office recognized an exemption to the DMCA for use of film clips in the classroom. Moreover, where courts have found educational fair use, it has generally been in the classroom setting and the preparation of scholarship, and less so in the publication of scholarship. There may be a perception (for good reason) that educational uses are particularly privileged because they are specifically mentioned in the fair use statute. But this can have the inverse effect we often see in contract law -- express provisions end up limiting educational fair use to those specified. Here, the fair use statute (section 107) provides that fair use includes: "reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" But there are both express and inherent limits in this right. One of the most troublesome is that you cannot use "more than necessary" -- however a court would interpret this. That limitation alone has struck down many apparently robust claims of fair use. Likewise, it is not clear whether "scholarship" includes distribution, although comment and criticism usually does (at least if you haven't used "too much" of the original). What if it is a commercial publication? What does it even mean to be "commercial"? etc. etc. I could go on and on (that's what lawyers and law professors do ...), but in sum my points are these: (1) educators often perceive their fair use rights to be broader than those actually recognized by the courts and the copyright office, at least so far, (2) fair use is not categorical and objective, meaning you often cannot "know" that something is fair use, (3) fair use is always fact-specific, and thus decided on a case-by-case basis, (4) fair use determinations are made by reference to four statutory "factors" -- not elements that you can check off -- so in many cases it is very difficult to predict an outcome, and (5) fair use is, at the moment, a very messy and unstable doctrine in US law. When you add to this that copyright infringement usually presumes harm, and that statutory damages can be very high, the end result is a chilling effect on speech -- particularly evaluative and critical speech. Publishers simply cannot (or will not) afford the risk. In fact, almost every law review/journal publishing contract requires the author to indemnify the publication for any copyright claims. Yes, we should push publications, but should also realize that the fair use determination is unfortunately a very difficult and risky one. Educators should also push congress and the copyright office for more definitive protections. P.S. The Columbia checklist, although helpful, can be a bit misleading in the sense that it suggests (if it does so) that enough checkmarks = fair use. The calculation is simply much more subjective/complicated/messy. Brian _________________________________________ H. Brian Holland Associate Professor of Law Texas Wesleyan University School of Law 1515 Commerce Street Fort Worth, TX 76102 Phone: (817) 212-3923 Email: bholland@law.txwes.edu THIS COMMUNICATION DOES NOT CONSTITUTE LEGAL ADVICE. -----Original Message----- From: air-l-bounces@listserv.aoir.org [mailto:air-l-bounces@listserv.aoir.org] On Behalf Of Annette Markham Sent: Wednesday, September 01, 2010 1:06 PM To: air-l@listserv.aoir.org Subject: Re: [Air-L] Permission to reproduce webpages? Hi Andre, It's probably clear to you how it falls within fair use, but it might be worthwhile to do a bit more work to help the journal editorial staff understand that this is actually fair use, if you haven't already. It seems to me that if the screenshot is part of the analysis, it's worth arguing a bit more about it with the journal, rather than accepting their assessment--which may be based on misinformation or confusion about copyright or fear about claims of copyright violation. There's a widely used form at Columbia that might help demonstrate how the use of the screenshot falls within fair use. http://copyright.columbia.edu/copyright/fair-use/fair-use-checklist/ There's also an online fair use evaluation tool that provides you an archival copy of the results of your fair use analysis. This can be useful for your own and the journal's purposes. http://www.librarycopyright.net/fairuse/index.php Good luck, annette ***************************************************** Annette N. Markham, Ph.D. Senior Research Fellow, Internet Research Ethics Center for Information Policy Research University of Wisconsin-Milwaukee amarkham@gmail.com http://www.cipr.uwm.edu/ http://markham.internetinquiry.org/ Co-Editor, International Journal of Internet Research Ethics http://www.ijire.net On Wed, Sep 1, 2010 at 8:22 AM, Andre Brock <andre.brock@gmail.com> wrote:

For the first time in, well, ever I've been asked by a journal to obtain permission from a website to reproduce a screenshot of a webpage. Not, to be clear, of an image on the page - but of the page itself. I've been offered the option of removing the image and replacing it with a URL, but from an archival standpoint that's problematic. Webpages with dynamic content change all the time, not to mention that authors sometimes change formats/platforms, modify pages, or remove content that was included in the original analysis.

I don't want to miss the publishing deadline, but I need to know: "where dey do dat at?!?" (translation: since when did fair use guidelines get bent so badly in academic publishing?)

André Brock Assistant Professor, SLIS/POROI University of Iowa

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