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cc-licenses - Re: [cc-licenses] "Fair Use" Materials within a CC-licensed document

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Subject: Development of Creative Commons licenses

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  • From: "J.B. Nicholson-Owens" <jbn AT forestfield.org>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] "Fair Use" Materials within a CC-licensed document
  • Date: Fri, 02 Sep 2005 16:32:56 -0500

Dipesh Navsaria wrote:
However, what about placing it under CC and making it freely available?

As I understand things, fair use doesn't mean you lose the copyright to the work in which you are fairly using parts of other copyrighted works. Fair use is an exception which allows authors to copy and distribute small sections of copyrighted works for certain purposes (such as scholarly analysis).

If I write a book critiquing another book, quoting from the book I'm critiquing in order to illustrate my points, I will hold the copyright to the book I wrote. If I go to a publisher to publish my book (as opposed to publishing it myself), I might have to sign over the copyright to the publisher. But the copyright is still initially mine from the instant I wrote the book in a fixed form.

Hence, I say that your work is copyrighted to you, assuming you're not writing it for hire or have some pre-existing contract which prevents you from holding the copyright. Therefore you can license and distribute your work as you wish.

o Does this still come under Fair Use? (I know, I know, thorny question.)

I don't think that it's possible to answer that here without seeing the work. Fair use cases are handled individually and many commercial publishers are leery of relying on fair use, hence they encourage the authors of the books they publish to adhere to quoting limits which will the publisher believes will be easy for the publisher to defend in court if necessary. It would not surprise me if these publishers require quoting less than one could successfully defend in court.

o Let's assume that it is Fair Use for a moment: how can I clearly indicate that while the document is CC-licensed, some of the images/ quotes within it are copyrighted material? Can I still distribute it under a CC-license?

You could place a caption under the image or note in footnotes or endnotes where it came from and that you are reproducing it here by leveraging your fair use right. The second question is just a repeat of the first question you asked.

This feels not all that different from a situation where I would submit this for scholarly publication, except that I'm not sure if I'm supposed to attempt to seek permissions or not. What if it was a CC-using journal? What would happen then?

You don't need additional permission to leverage fair use; in countries that have such a thing, you have all the permission you already need.

If you're going to publish your essay somewhere, the publisher might not accept the work unless it meets certain criteria, one of which could be that the essay is licensed to them or to the readers a particular way.

Good luck.



  • Re: [cc-licenses] "Fair Use" Materials within a CC-licensed document, J.B. Nicholson-Owens, 09/02/2005

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