I’m currently handling a difficult case where a poetry publisher is demanding a royalty for citation of text within a work of literary criticism. They want to know how many “copies” we are “printing” so they can charge us.
It is my view that this is totally extortionate and that this use is “fair dealing” under UK law for purposes of criticism and review. However, the partner dealing with this asked the publisher, who replied that an example of what they would consider “fair use” would be “material that is less than 10 percent of a selection, for a five year term or less, and for copies amounting to less than 500.”
Interestingly, their definition of fair dealing here is not actually the one that UK courts have used. “Number of copies” and length of term are not factors considered by courts in a fair-dealing case. The factors are: quantity of material copied, probably relative to the whole work, and the consequences for the economics of the publisher. Certainly, those variables might have an impact on the consequences of the re-use.
More importantly, though, this publisher has no understanding of digital online publishing. This is not specific to open access. They will only grant us a ten-year term based on probable number of hits (“copies printed”). So what happens in ten years time? We would be completely at the mercy of this entity in terms of re-licensing in a decade if we did this. The alternatives facing us will be: 1. pay whatever fee they demand (which could be jacked up to unreasonable levels); 2. to take the article down (bad practice); or 3. to tell them to go away and that this is fair dealing allowed under UK copyright law.
Clearly, the last should be the course we should take. I would also note that it is not for publishers to decide “what they consider fair dealing”; this is a matter decided by the courts. However, we cannot afford to take this to court or to be sued.
In the digital age, “print run” does not exist. “Number of copies” can only be guessed at. Granting a license “for a term” as though it is time limited is ridiculous. But what should be clear is that “fair dealing” for purposes of review and criticism should be allowed. Using copyright to extort valid academic commentary on poetry seems, to my mind, obscene.