The Fair Use Doctrine

[Carol]

I don't know anything about the concept of fair use as it exists in
Britain, which JKR may be somewhat familiar with, but since Steve
Vander Ark is an American and we're dealing with an American publisher
in an American court, it's the American definition that matters.

Is the printed version of the Lexicon, sold for profit (but not likely
to sell nearly as many copies as the HP books themselves!) fair use or
not? The best way to determine that is by consulting an authoritative
source that defines the concept and discusses its implications.

The best source I know of is "Introduction to Fair Use" at
http://www.publaw.com/work.html

I'll quote some of the relevant portions here--for the rest, you'll
need to go to the web page itself. 

"There is virtually no question which occurs more frequently to those
in the publishing community than "how much of someone else's work may
I use without asking permission?" The answer rests in the concept of
"fair use" and the fair use exception in the Copyright Act.

"Fair use is a limitation on the exclusive rights of the copyright
owner. The roots of what we today refer to as fair use are well
established in our early English common law tradition. The "fair use
doctrine" is a complex exception to the "limited monopoly" vested in
authors by the United States Constitution and Copyright Act. The
guiding principle of the fair use doctrine is to make available, for
limited purposes, reasonable public access to copyrighted works.

"Section 107 of the Copyright Act, entitled, "Limitations on Exclusive
Rights: Fair Use," is the statutory codification of the fair use
doctrine. This judicially developed concept strives to balance the
public's need to know and be informed against authors' incentives to
create. The copyright law contemplates that fair use of a copyrighted
work without permission shall be for purposes such as (1) criticism
and comment, (2) parody and satire, (3) scholarship and research, (4)
news reporting and (5) teaching, and that such fair use will not
result in the infringement of a copyrighted work. As one may expect,
authors and publishers usually take a restrictive view of the fair use
doctrine, while users of copyrighted materials generally take a more
expansive view."

So far, so good. "Fair use" allows the use of a copyrighted work
*without permission* not only for "criticism and comment" (which JKR's
side complains is missing from the Lexicon) but for "scholarship and
research" and for "teaching." It looks as if literary critics, English
teachers, and students writing either literary analysis or book
reports are protected. (Fanfic isn't even considered, as it probably
didn't exist when Section 107 was written.) Does Steve's work fall
under "scholarship and research"? That is the question.

Because literary works can be written about by persons other than the
author in a variety of ways (I'm paraphrasing here), it's impossible
to formulate exact rules and fair use rulings often conflict with one
another. However, U.S. courts consider four "fair use factors" to
determine "whether a particular use of a copyrighted work is fair use." 

I'm listing those four "factors" here, verbatim from the website,
which, in turn, is quoting Section 107 of the Copyright Act:

"1. the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes;
"2. the nature of the copyrighted work;
"3. the amount and substantiality of the portion used in relation to
the copyrighted work as a whole; and
"4. the effect of the use upon the potential market for or value of
the copyrighted work."

It seems to me that number 2 is not particularly relevant, but the
"commercial nature" of the Lexicon (RDR's intention to sell it for
profit) is probably quite important. Number 3 can only be determined
by a close comparison of the two works, and, given the nature of the
Lexicon as a reference work, it would naturally contain more quotation
and paraphrase than literary analysis, which would be the writer's
interpretation of the author's work supported with quotations and
paraphrases and examples form the original work. As for item 4, it
seems to me that no one would buy the printed Lexicon who hadn't
already read the HP books (and felt a need for clarification or
definition or references to pages on which the work occurs--of course,
if a person is writing literary criticism intended for publication or
even submission to a college English teacher, they'll cite the
original work and not the Lexicon if they expect to be published or
receive a decent grade).

Obviously, or, I hope obviously, the mere fact that the printed
Lexicon will be published for profit does not mean that it's not fair
use. If that were the case, literary journals would not exist and
scholarly publishers would go out of business. Half the books I own
are literary criticism or anthologies of previously published literary
works, with notes and introductions as the only "original" portions of
the printed book. So the question is whether the Lexicon was created
primarily to profit from a previously published work or for an
educational purpose. Since it was originally created to be distributed
free to all users online, I think that Steve V. can claim that the
book is *primarily* noncommercial and falls under "research and
scholarship." (The judge may not agree with me, of course.) 

As for the amount of text from JKR's books that Steve has quoted or
paraphrased, "the scope of fair use is greater when an 'informational'
work--a work of facts or information, a work of scholarship or of news
reporting--as opposed to a more 'creative' work--a work of fiction--is
involved or when a work is designed to inform or educate rather than
to entertain."

IOW, a reference work like the Lexicon has more protection from fair
use than a creative work such as a novel borrowing concepts or
characters (which pretty much rules out fanfic, at least for profit).

The amount of work copied, however, may be a problem, even in a
reference work. Obviously, Steve V. can't take the books in their
entirety and simply rearrange them alphabetically within categories. I
don't think, however, that he has done that. If we took a word count
of the entire Lexicon and a word count of the combined HP books, we
would see that his book is substantially shorter, probably shorter
than PS (though I haven't checked and am only guessing). Moreover, a
substantial portion of the words used are not JKR's; they are
paraphrases or summaries or etymologies. For example, "The Wizarding
World Atlas & Gazetteer" begins, "Separated from Muggles since 1689,
the Wizarding World has grown and developed independently from the
rest of society, though it still parallels it in many ways. For the
most part, wizarding places today are kept well-hidden from Muggle
eyes. Here you can find information on these places, both wonderful
and mundane, both hidden and in plain sight." JKR can't claim that
these words are her own; they are primarily inference based on the
reading of her works. (The date 1689 seems to be taken from DH;
earlier books give the date for the Statute of Secrecy as 1692. But
the Lexicon doesn't even note the discrepancy and simply takes DH at
its word.) If the essays included in this section and elsewhere are
included in the printed book, the percentage of JKR's own words is
even smaller.

As for harm to the market for the HP books, I doubt that they'll be
affected in the least by any reference work or work of literary
criticism. And no one in their right mind, including Steve V. and his
publishers, thinks that Steve's book can compete with JKR's definitive
encyclopedia. It was neither created nor published for that purpose,
and any HP fan with $25.00 in hand and the choice of buying either his
book or hers, not both, will choose hers once it's written.

Carol, hoping that she hasn't bored anyone but concerned as a
professional in the publishing field and sometime writer-researcher
with the implications of this case for scholars, researchers, and
literary critics