By Victoria Mixon
Section 107 of copyright law, as per the US Government
Section 107 [of copyright law] contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research.
Self-published (and even traditionally-published) books on “how to write” are not covered under section 107 because they are commercial books.
In fact, they are commercial nonfiction of the ‘how-to’ genre.
Traditional publishers know this, which is why they list in their front matter all quotes and the permissions obtained for reprinting those quotes.
Books on “how to write” are not ‘criticism,’ because they do not fall within the narrowly-defined field of professional critical essays written by professional critics, which are typically published in commercial or peer-reviewed periodicals.
They are not ‘comment‘ because the bulk of a book on “how to write” is commercial ‘how-to’ genre rather than professional commentary by professional critics upon texts. Most book reviews are covered under this caveat, but not entire books on “how to write.”
They are not ‘news reporting‘ because they are not written by professional journalists and published in professional journalistic periodicals.
They are not ‘teaching‘ because they are not professional educational texts or educational tracts published in peer-reviewed periodicals within the professional educational field.
They are not ‘scholarship‘ because they are not written by scholars of specific subjects published in peer-reviewed periodicals within the professional academic field.
They are not ‘research‘ because they are not scientific or theoretical research of specific subjects published in peer-reviewed periodicals within the professional scientific or academic fields.
You’ll notice the one big failing that self-publishing plagiarizers face: they are not professionals.
And because they’re not professionals, they don’t understand copyright law. They haven’t researched its legal precedents. They’re not usually either publishing insiders or law students. Sometimes they haven’t even read copyright law in its entirety.
Aw, jeez, that seems like a whole lot of legalese to wade through for someone in an all-fired hurry to run out and make their fortune as a writing guru by quoting people smarter and more experienced than themselves.
Instead, plagiarizers rely entirely upon their “own reading” of what copyright law they have read, which amateur reading is worth exactly bupkiss in the court of a copyright judge.
Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.
Now, remember that copyright judge mentioned above? Yeah. This is the person who’s going to use these four factors to determine whether or not a particular use is fair. Not the plagiarizer. The judge. That’s because the judge is a professional, does understand copyright law, has researched its precedents, has been to law school, and most certainly has read copyright law in its entirety.
This means, again, that an amateur reading of these four factors is completely meaningless. Amateurs have absolutely no authority in determining the use and/or abuse of copyright. Only a judge has that authority.
But we’ll proceed, anyway, just in case a plagiarizer tries to use their amateur reading of copyright law to bamboozle you.
Don’t be bamboozled, people!
The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
This is where the self-published books of plagiarizers on “how to write” immediately lose all traction. Those books are commercial in nature and not nonprofit educational books.
The nature of the copyrighted work
This is where quotes by others on writing fall under the protection of:
“Copyright, [which] protects the particular way authors have expressed themselves.”
Plagiarizers don’t like to read this far down when they read copyright law. But it’s there: your words are explicitly copyrighted under. . .
“Protect[ion for] the particular way authors have expressed themselves.”
The amount and substantiality of the portion used in relation to the copyrighted work as a whole
This is where plagiarizing others leads into intensely grey area, because:
“There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.” [Emphasis mine.]
Has a self-publisher crossed that murky line into plagiarism? If they haven’t asked permission, then—yeah—they almost certainly have.
This is why copyright law cautions (again, further down than plagiarizers like to read):
“The safest course is to get permission from the copyright owner before using copyrighted material.”
The effect of the use upon the potential market for, or value of, the copyrighted work
And this is the final nail in the coffin of plagiarizers, because If the real author ever wants to put their copyrighted work into a book under their own name, the plagiarizer has put it into their copyrighted published work, making it possible for the real author to wind up in copyright violation by publishing their own copyrighted words.
This can definitely affect the potential market for, and therefore value of, an author’s copyrighted work.
So this is where lawsuits for loss of income come into it.
The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”
“review or criticism”
Reviews and professional criticism again, which are generally published in periodicals and can be used only for the very specific purposes outlined.
“scholarly or technical work”
Academic or scientific reports again, and only for “illustration or clarification of observation,” which reports are published in periodicals.
This actually is a real loophole in copyright law, but it does not cover books on “how to write,” unless the writer honestly considers their book a joke.
Journalism again, which is published in periodicals.
“reproduction. . .of damaged copy”
Even this is allowed only by a library or other entity solely for the purposes of restoring the original.
“legislative or judicial proceedings or reports”
i.e. Legal proceedings, with which we can assume the writer of a book on “how to write” is not anxious to become entangled.
“incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported”
And this one doesn’t even need clarification. Books are not newsreels or broadcasts. And, besides, we can safely assume that a book on “how to write” contains no “incidental” material that just fell in there by accident.
Finally, there is:
When it is impracticable to obtain permission, you should consider avoiding the use of copyrighted material.
And this seems clear enough for even the most self-deluded of plagiarizers.
It is indeed quite practicable to obtain permission to use most of the work being plagiarized today in books on “how to write.”
And if it’s not, then—hey!
Don’t use it.
Below, for your edification, is the rest of the body of section 107 of copyright law by the US Government:
One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law. . .
The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
Copyright protects the particular way authors have expressed themselves. It does not extend to any ideas, systems, or factual information conveyed in a work.
The safest course is to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.
When it is impracticable to obtain permission, you should consider avoiding the use of copyrighted material unless you are confident that the doctrine of fair use would apply to the situation. The Copyright Office can neither determine whether a particular use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.
A. VICTORIA MIXON, FREELANCE INDEPENDENT EDITOR
VICTORIA’S ADVICE COLUMN
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