In a three-hour trial two days ago, Chinese professor, literary critic, writer, and political activist Liu Xiaobo was convicted of “inciting subversion of state power” by a Beijing court. Today, Christmas Day, the court sentenced him to 11 years in prison.
Liu had coauthored a declaration which called for an end to one party rule and for increased human rights. The declaration was signed by hundreds of thousands of Chinese citizens.
Liu was a professor at Beijing Normal University and had served as a visiting scholar at Columbia University in New York City. He was president of the Independent Chinese PEN Center for four years. According to the PEN website Liu was not permitted to present evidence at his trial.
While the United States is far from becoming the authoritarian state that China is, as the American public accepts the government’s increasing role in each of our daily lives, it behooves all of us—especially authors and publishers—to be watchful for limitations, no matter how subtle, imposed on our right to say or write anything we please.
Just a Write Thought.
Here’s a twist. A copyright holder ends up as the one paying in a Fair Use dispute.
With the Fair Use doctrine—a part of the U.S. copyright law—an author is allowed to quote another’s copyrighted material for criticism, commenting, teaching, and other narrow uses. The actual limit on how much can be quoted isn’t defined by the law.
Disagreements are usually settled out of court, but, when a dispute goes to trial, the court generally looks at four things: the purpose of the use, the nature of the copyrighted material, the portion of the work used, and the effect of the use upon the market for the copyrighted material.
In this case, the Estate of James Joyce objected to Stanford University professor Carol Schloss’ use of copyrighted material in a book she was writing. Schloss claimed the material she wished to use fell under the doctrine of Fair Use but took the material out of her book when, she claimed, she was threatened with a copyright infringement lawsuit.
Subsequently she wished to use some of the material in a website and she enlisted the Stanford Fair Use Project to go on the offensive to establish her right to use the Joyce material.
In the end the Estate agreed to pay her $240,000 to settle the case.
This is a reversal of what normally happens when copyright holders attempt to protect their copyrights, and is being hailed by some as better establishing the rights of authors to use copyrighted material in critical works without fear of being sued. In many cases simply the threat of a lawsuit is enough to stop an author from using copyrighted material in any manner, including what may actually constitute fair use.
All of this is interesting, but may lack practical application to the average writer. If you wish to use a large portion of another’s copyrighted material it is still best to ask permission.
To read more on this check out the Stanford Law School Center for Internet and Society blog or this Publishers Weekly article.
For a good, simple explanation of United States copyright laws see the chapter on copyright by John Zelezny in The Portable Writer’s Conference. (Full disclosure: QDB is the publisher and I’m the editor of the Portable Writer’s Conference.)
The price of freedom is eternal vigilance. —Often misattributed to Thomas Jefferson (See here)
This editorial isn’t perfectly unbiased, but if you are interested in free speech—and as a writer or publisher you’d better be—you likely should read this: “Diversity Czar Threatens Free Speech.”
