Re: An "entirely original" contribution (Was: copyright expiration...)

List members -- please forgive me for the lengthy quotation, but both my and Mr. Henderson's dependence upon quotation is precisely what interests me.

The following passage is quoted (>) from a recent post by Albert Henderson <noblestation[_at_]compuserve.com>, who was quoting my earlier post (> >)..quoting his earlier post (> > >).
>
> On 10 Sep 1998, John Logie <antrobus[_at_]ripco.com> wrote:
> >
> > Albert Henderson <noblestation[_at_]compuserve.com> wrote:
> > >
> > > If obtaining permissions is too much work, try doing something
> > > that is entirely original.
> >
> > I would appreciate if if Mr. Henderson would identify some
> > works which meet this standard, i.e. of being "entirely
> > original."
> > Myself, I have never encountered anything of the sort. And I am
> > certainly unable to produce such works myself. Look! I even
> > quoted Mr. Henderson in order to phrase my simple request!
>
> In the terms of the discussion on copyright, an entirely
> original work would include no quotations.

In my view, any meaningful "discussion of copyright" ought to acknowledge that even these brief e-mails are subject to protection under copyright law in a post-Berne context. They are "fixed." Electronic media have been found to be "tangible" enough for purposes of copyright. And those portions of our posts which have not been copied from previous posts are (marginally) original. Under current law, these messages are subject to copyright.

And yet, Mr. Henderson has helped himself to about 50 of my words. (And indeed, I have helped myself to several of his!)

Mr. Henderson went on to write:
>
> This is the meaning of the standard part of agreements
> between authors and their publishers. If there are
> quotations, the author is usually responsible for
> clearing them in my experience.

Mr. Henderson, functioning as both author and publisher of his brief e-mail message, did nothing of the sort. He did not contact me, did not secure my permission, he did not "clear" his quotation of my earlier post. He just took my words and used them.

Ordinarily, I would have no problem with this. Mr. Henderson's quotation of my post is clearly fair use, and it was entirely appropriate for him to provide an excerpt from my message in order to situate his own comments. But Mr. Henderson advocates lengthy copyright terms, and he challenges the validity of fair use (in a September 15 post, Mr. Henderson writes, "you might call 'fair use' including 'library photocopying' a 'new right' created by law. I don't see how it flows from Art. 1 Sec. 8 of the Constitution or common law.") Mr. Henderson also has suggested that if one is not willing to secure permissions, one ought to produce something "entirely original." For these reasons, I am troubled by Mr. Henderson's apparent willingness to violate the standards he would impose on others.

Perhaps Mr. Henderson's dicta are meant to pertain only to works published in traditional (i.e. print) media. But copyright law draws no such distinction. The teasing e-mail which I wrote, and which Mr. Henderson quotes, is every bit as copyrightable as Don DeLillo's "Underworld." We all intuitively understand the differences between my brief rejoinder to Mr. Henderson and DeLillo's magnum opus -- but both are subject to copyright. And if one argues (as Mr. Henderson does) for maximal copyright protection, and for securing permissions and clearances, and against fair use, well, wouldn't it be appropriate to demonstrate one's commitment to these positions by either going through the process of securing permissions or, in the alternative, attempting to compose "entirely original" works?

Of course, were Mr. Henderson to undertake securing permission for all the material he wishes to quote, or,in the alternative, were he to painstakingly paraphrase each of the arguments he wishes to address, this would slow the pace of his composition considerably, making it difficult for him to maintain the roughly two-post-a-day average he has achieved over the last thirty days.

I don't want to hurt Mr. Henderson's average, so I hereby place the contents of this message... or at least those parts I didn't copy from previous messages... into the public domain, so that he, and all other readers, might use my words without fear of reprisal.

Cheers,

John Logie
Pennsylvania State University
<antrobus[_at_]ripco.com> Received on Thu Sep 17 1998 - 19:08:58 GMT