A quiet regular reader of Via Negativa who knows of my interest in such things tipped me off to a new Code of Best Practices in Fair Use for Poetry (via Boing Boing). It grew out of the earlier and most excellent “Poetry in New Media: A Users’ Guide” (which is still perhaps a more interesting document, especially to people outside of the United States). Developed under the auspices of the Poetry Foundation, the new document is a first crack at an articulation of Fair Use standards for the American poetry-making and -using community, standards that could not only guide use but could even conceivably influence U.S. copyright cases, because as it points out, courts deciding such cases often take into account “whether the user acted reasonably and in good faith in light of standards of accepted practice in his or her particular field.”
I’m a little uneasy at the way in which these new standards were generated without any popular input, any attempt to poll or crowd-source among poets and fans of poetry. The New Media Working Group panel members listed in the back of that earlier report [PDF] are a pretty high-powered bunch, and I’m sure they’re all fine people (one is a Facebook friend), but I don’t see any scruffy poetry bloggers or remix artists among them. (Poet and lyricist Wyn Cooper comes the closest. Almost all the others are academics.) We’re told they had “an additional information-gathering meeting in Boston in November of 2009. The Center for Social Media and the HMPI [Harriet Monroe Poetry Institute, part of the Poetry Foundation] then held six additional small group meetings, each with 10 to 20 participants — two at the 2009 MLA convention in Philadelphia, two at the 2010 AWP convention in Denver, and, in April 2010, two at the Poetry Foundation offices in Chicago.” MLA = Modern Language Association; AWP = Association of Writers & Writing Programs. So this was a very elite, academic, and exclusive process.
I hate to raise this objection, though, because I like most if not all their conclusions, and I think the document represents a huge step in the right direction. Moreover, as authoritative as they try to make it sound, nothing compels us to accept it — which is precisely why they should’ve worked harder to include more people in the drafting process. In their defense, poets rarely manage to discuss much of anything without considerable acrimony, and a more public process might’ve been hard to pull off. And nothing prevents a bunch of us hoi polloi from convening ourselves, consulting with some intellectual property experts, and trying to build support for another set of standards via a more open process. Since these initial, suggested community standards are, by the report authors’ own admission, incomplete, maybe that’s indeed what needs to happen next, six months or a year down the road.
The seven practices for which new standards are suggested are: parody and satire; new works “remixed” from other material; education; criticism, comment, and illustration; epigraphs; poetry online; and literary performance. I was especially cheered by the recommendations for epigraphs:
[…] Members of the poetry community generally found this practice to be non-controversial.
PRINCIPLE: Under fair use, an author may use brief quotations of poetry to introduce chapters and sections of a prose work or long poem, so long as there is an articulable relationship between the quotation and the content of the section in question.
- Quoted passages should be reproduced as accurately as possible to reflect the poet’s underlying creative choices, except to the extent that modification is specifically justified by the purpose of the use.
- Authors should provide conventional attribution to sources unless the original is readily recognizable by the intended audience or the absence of proper attribution is justified by the purpose of the use.
- An author employing multiple epigraphs should draw from multiple sources unless there is specific justification for limiting quotations to one or a few sources.
I hope this standard becomes widely adopted, because currently all too many publishers require authors to get permission and in some cases pay steep fees for the use of epigraphs. I actually set aside a project of my own — a book-length poem that makes extensive use of epigraphs — and decided not to bother revising and pursuing print publication mainly because I couldn’t see running that gauntlet.
The “poetry online” section suggests a standard for people who like to blog entire poems from others without explicit permission:
PRINCIPLE: Under fair use, an online resource (such as a blog or web site) may make examples of selected published poetry electronically available to the public, provided that the site also includes substantial additional cultural resources, including but not limited to critique or commentary, that contextualize or otherwise add value to the selections.
- Compilers of poetry sites should reproduce poems accurately, to reflect creative choices embedded in the poems they include.
- Compilers should provide conventional attribution to source material no less extensive than would be appropriate for use in a conventional publication.
- Where a poet’s work is reasonably available for purchase in volume form, compilers should restrict themselves to the use of single or isolated poems only.
- In itself, a compiler’s inclusion of simple finding tools on a poetry site is not sufficient to justify an assertion of fair use with respect to quoted passages or poems.
- Nor is the mere assertion of the compiler’s admiration for or personal association with a particular passage or poem independently sufficient to justify inclusion.
- A blogger quoting a poem in a blog should use only as much of the poem as is necessary to the blogger’s specific goals, whether the purpose is providing commentary or making some other discursive point.
- Poetry sites should formulate and enact policies to provide for prompt and reasonable responses to objections by poets (or their qualified successors) to either the fact or the form of any use.
Important as these standards are, they are obviously only applicable to works covered by U.S. copyright law — no other nation has something comparable to our Fair Use provisions. They are also predicated upon the assumption that most creative writers will continue to employ standard copyrights, rather than grant additional use rights with a Creative Commons license. I think that’s an unfortunate assumption. Working on the current Translation issue of qarrtsiluni, I’ve been frustrated to see wonderful poems we might not be able to publish because the current copyright holder for the works of some poet who died decades ago might be unknown or unreachable, and because translations are considered derivative works, even though they are completely new creations using borrowed templates. (Recipes and other sets of directions can’t be copyrighted.) If we as writers want the freedom to publish our own translations without having to ask someone else’s permission, or if we want to enjoy the kind of standards outlined in this report for works from around the world, we need to lead by example and apply Creative Commons licenses — the kind that don’t say “no derivatives” — to everything we publish. You know, “be the change we seek” and all that.
As I’ve argued before, the source code of the imagination is existentially open. We ought to follow the example of the Free/Libre and Open Source Software (FLOSS) movement and make sure we don’t let narrow self-interest stifle innovation and the flowering of poetic culture. Since I know a lot of people are enjoying Luisa Igloria’s poems in response to my Morning Porch posts, let me point out that, even if these new standards are widely adopted, they might not cover this kind of use without special permission from the copyright holder — permission I grant up front to anyone who wants it via a Creative Commons license. That’s because most of the time she is using the entire post. The new Fair Use standard for remixing, which includes “found poetry,” suggests that “quotations should be brief in relation to their sources, unless there is an articulable rationale for more extensive quotation.” So it’s pretty murky. Why not spell it out? The new report itself puts it best:
Poetry, as a highly allusive art form, fundamentally relies on the poet’s ability to quote, to copy, and to “play” with others’ language, and poetry scholars and commentators equally rely on their ability to quote the poetry they are discussing. In fact, poets generally acknowledge that essentially everything they do in their workaday lives, from making their poems to writing about poetry to teaching poetry, builds on the work of others.
Whether you’re a poet, a blogger of other people’s poetry, a poetry teacher, a writer who likes to quote poems in books or essays, or anyone who loves to share or build upon poetry, please do read, discuss, and hopefully help shape the successor to this brief but important document.