New Developments Reveal That U of A's "Intellectual Property Rights" To Clinton Recordings Are Wholly Imaginary
You might recall our story last week about the intemperate letter that University of Arkansas library dean Carolyn Henderson Allen sent to the Washington Free Beacon. That letter told the Beacon: you must “cease and desist your ongoing violation of the intellectual property rights of the University of Arkansas.” Allen didn’t like the fact that the Beacon had quoted some materials from the archives without filling out the proper “Permission to Publish Request Form”; she therefore demanded that the Beacon take down the information that it had received from the university’s archives and surrender all copies of the materials it held.
Allen’s demands were overheated enough that the PR experts at the U of A followed up with some more temperate language. The subsequent unsigned statement the university issued (it’s credited to “University Libraries”) explains that “the bottom line” is that the Beacon’s research privileges were suspended because it “failed to obtain permission to publish copyrighted material.”
But the university’s PR experts overlooked something that’s pretty important: their newest statement is far less emotionally unbalanced, but it’s still completely and utterly indefensible. I realized this yesterday when Charles Allison (who, unlike “University Libraries,” is a human being; he’s executive editor of one of the university’s PR departments) returned my call. He was kind enough to look into something I had asked him about. Namely: who holds the copyright in Roy Reed’s now-famous interview of Hillary Clinton? Did Roy Reed ever sign over the copyright to the U of A? According to Allison (who, unlike some university administrators I could name, gives every indication of being a polite and reasonable person), the answer is “no”: Reed still holds the copyright.
But this fact — Reed’s copyright ownership — should set off alarm bells for the “University Libraries,” because it demonstrates that they are complicit in Allen’s imaginary grudge against the Beacon: namely, it shows that the university’s unsigned statement that the Beacon’s privileges were withdrawn because “they failed to obtain permission to publish copyrighted material” is completely and utterly groundless. If you look at the “Permission to Publish Request Form” that the U of A demanded that the Beacon sign to get its privileges back, you’ll see something quite relevant in this context. Take a gander at the middle of the one-page form:
I understand that this permission will be valid only insofar as the University of Arkansas, as owner or custodian, holds rights in the material, and does not remove the responsibility of the author, editor, and publisher to guard against infringement of any rights, including copyright, that may be held by others.
(Apparently the idea that there might be non-university copyright holders of materials kept in the university’s archives was such an important concept that the creators of the form underlined it for emphasis. Librarian, heal thyself!)
Why is that paragraph of legalese important? Well, as “University Libraries” might say, here’s the bottom line: the University has now adopted the posture of insisting that the Beacon sign what appears to be an entirely pointless form. The form says expressly that it cannot and does not grant the “permission to publish copyrighted material” held by others (held, in this case, by Reed) that is the ostensible basis for the U of A’s concern — and the basis for its suspension of the Beacon’s research privileges. Even if the Beacon accedes to Allen’s demand, this will protect no one and accomplish nothing at all.
So why is the University insisting that the Beacon sign a form that accomplishes nothing and which has no effect on anyone’s legal rights? Your guess is as good as mine. Maybe because the archive is run by a library dean who leads such an empty existence that her primary source of pleasure in life is ordering other people to follow pointless commands? Perhaps a nicer way to explain this is: Maybe it’s because the university takes itself very seriously. And the university will not be mocked! (Although I suppose that is not a much nicer way to put it.)
One thing’s for sure, though: the university’s insistence that the Beacon participate in a pointless and burdensome process has nothing whatsoever to do with the library dean’s decision to make life just a little more difficult for conservative researchers — and it has even less than that to do with the library dean’s support of Hillary Clinton’s presidential campaign. It causes some personal sadness for me that you might, even for a moment, suspect otherwise.
Of course, anybody who knows anything about copyright knows that it’s perfectly OK in many circumstances to quote brief passages from a larger work without any permission from or payment to the copyright holder. The power to quote brief portions of a larger work verbatim is protected in the law as “fair use.” This means that even if the university had a copyright in the Reed interview, its statements would still be ignorant, groundless, and bumptious.
Various factors determine whether a brief quote falls under “fair use.” It is impossible to determine whether any particular use is fair use with perfect precision, but here are a few informal tests. Is the use for nonprofit or educational purposes? (Check.) Is the use a small part of the larger work? (Check.) Does the use avoid damaging the potential market value of the larger work? (Check.) Is the use in the realm of news reporting or comment? (Unless there are lots more revelations like the one the Beacon found: Check.) The more of these questions you can answer yes to, the more likely it is that the use is “fair use.” For instance, if a nonprofit newspaper publishes a small portion of a decades-old archival interview with a front-runner presidential candidate who appears to be violating her legal and professional responsibility by publicly revealing new facts about her criminal-defense representation of an alleged child molester, this sure looks like fair use to me.
So, the bottom line (ahem) here is that, even if university personnel were under the mistaken impression that they were protecting their own copyright, their demand is a case of hilariously careless bureaucratic overreach. Let’s say I published my autobiography, but I don’t like the fact that people might then quote snippets from it. I guess I could put a little notice in the front of the book that said “Even if you buy this book, you don’t have fair use rights in it, and if you quote anything from it, you’re going to owe me lots and lots of damages.” But the notice wouldn’t matter: everybody would still have fair use rights to quote from it, and they wouldn’t owe me a dime. That’s obvious, but it also ought to be obvious that the “Permission to Publish Request Form” works just the same way. In short, the copyright holder can’t prohibit you from reproducing a brief quote from a work, even if she’s the dean of an extremely important (or, at least, extremely humorless) library system.
I’m not sure what else there is to say about this. But if you have any comments about the way Fayetteville’s university libraries should be run, Carolyn Henderson Allen has graciously offered you the opportunity to communicate your views here. Although you may be tempted to begin any such communication with a phrase like “Do y’all have any idea what you’re doing?”, I recommend a more conciliatory tone.
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Presumably the language you quote from the form does accomplish one thing: if Reed tries to sue the university for giving away his intellectual property, it allows the university to show that it did due diligence and informed the researcher that they needed Reed’s permission. Not that that justifies hounding the Beacon in this case, but it is a prudent way to run things when you’re the custodian of other people’s property.