Monday, 28 June 2010

Fair Dealing in relation to Collected Works

What do you do if you’re an editor of a collected work such as individual essays and you find that your contributors have all cited passages from the same book? Can you get away with fair dealing or should you seek permission from the publisher?

First things first: fair dealing in situations like this one applies to the work as a whole, NOT to each individual essay. So editors, be wary – if each essay contains a 300 word citation from the same work, the whole collection of say ten essays will have reproduced 3000 words (or thereabouts taking any duplication into account) from the original work and therefore is unlikely to be considered fair.

For a work which is being published, whether by an academic publisher or not, the only defence that can really apply here is fair dealing for criticism and review. This defence only applies to material which is cited from a published work.

But what is ‘fair’? Copyright law doesn’t define it, and the publishing world have tried to define it but since retracted trying to quantify it after the 11 words Danish newspaper court case. Courts take into account the amount taken (both quantity and quality) and the potential impact on the market for the original work (will your work compete with the original?). As a result, ‘fair’ has come to mean ‘only as much as you need to make your point’.

And what’s the aim of the collection? If it is engaging in evaluation and critique of literary work, your defence for criticism and review will be stronger than if it is used extraneously or purely for illustration.

Authors v Publishers

So what’s the consensus amongst the two camps who are often on opposite ends of the spectrum? The Society of Authors advises authors on the use of citations of no more than a total of 800 words in short passages from a book in any one publication. Citing from a work stimulates the market, and rather than your work being a substitute, it becomes an enticement for readers to investigate the original work.

Publishers’ advice can vary, so it is always advisable to check their author agreements and copyright/permissions policies beforehand, but on the whole academic publishers tend to agree with the limits stated by the Society of Authors, even though they now refrain from setting official limits.

Practical Advice

If you do end up in this situation, my advice to editors would be this: arduous as it is, take a word count of the cited passages from that particular book across your collected volume of essays. If your word count comes to 400 or less, I’d say you would be within the limits of fair dealing. If your word count is between 400 and 800 words, then as long as they are all in short passages and not reproductions of 400 words at a time, then the risk is still quite low. If your word count is between 800 and 1000, you would have to make a decision on whether to take the risk and try to get away with this as fair dealing for criticism and review (provided it is for that purpose). Any more than 1000 words in total I would suggest you either cut the number of citations down or contact the publisher for permission, which will come at a fee.

*note: this is not legal advice, but opinion based on research*