July 12, 2004 | By Donna Wentworth

University Press Refuses to Be Fair Use Guinea Pig

On the heels of the brouhaha over OutFOXed comes yet another tale of copyright gone bad.

The protagonist is Liane Curtis, who compiled an anthology that included excerpts of unpublished work by Anglo-American composer Rebecca Clarke for publication by Indiana University Press. The copyright to this work is held by Christopher Johnson of Oxford University Press, and he accuses Curtis of violating it by using unauthorized excerpts. Ms. Curtis disagrees, arguing that the use is fair -- but her publisher simply doesn't have the resources to back her up in court.

The problem isn't that Ms. Curtis should be able to use any copyrighted materials she chooses -- she may indeed have violated Mr. Johnson's copyrights. It's that without sufficient funds or friends of the pro bono persuasion, there isn't any contest. The threat of a lawsuit is alone adequate to decide the "case" in favor of the copyright holder. This means that even (or especially) in academic publishing, the bottom line is the bottom line -- because, as the Indiana press music editor puts it, "No one has $11-million to test the gray areas."

Sigh. We've seen this scenario play out in a number of different arenas, but it's especially sad to see it happen in academia.


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