It’s also good to know how other authors should be approaching you if and when they wish to obtain permission to quote excerpts from your work.
Copyright laws vary country to country, though many are connected through copyright treaties such as the Marrakesh Treaty, the World Intellectual Property Organization, and the Berne Convention. There are 175 countries signatory to the Berne Convention, which means the almost all of the globe’s 192 countries have agreed to respect one another’s copyright laws.
Basically, it means that authors and creators from each of the signatory countries have minimum standards of protection related to economic rights. That includes the right to economically benefit from translation, adaptation, public performance, broadcast, or reproduction of their original work. And, if you want people to treat your copyrighted works with respect by formally requesting permission to quote from you, it makes sense to ‘pay it forward’ and be sure you’re operating the same way.
Permission to Quote
Age of the Quote
If you wish to seek permission to quote passages from works published prior to 1948, 70 years ago, most likely the copyrights on those quotes have expired and they are now in the public domain. Therefore, you would be permitted to use such quotes without obtaining explicit permission from the original author, or the author’s estate. An example would be quotes attributed to the founding fathers of the United States.
The major exception to that stated above is for advertising slogans and trademarks. Regardless of when they were created, conceived, and fixed, any slogan or trademark still in use remains protected by copyright.
Distinctiveness of the Quote
However, that may not necessarily be the case. A cunningly devised short phrase may actually contain very unique and original expression that is protected. If this is the case, you would be required to follow required standards regarding copyright and permission to quote.
Use of the Quote
There are certain exceptions on when the copyright owner’s authorization is required (permission to quote) and when it isn’t. Typically, these exceptions are known as ‘free use’. Free use can be exercised in the following scenarios:
- Quotations and other short excerpts of a work, reproduced for teaching
- Using works related to current events to report in the newspaper and similar formats
- Short recordings of a work to be broadcast
- Developing countries can reproduce and translate an author’s work without authorization if it is to be used for teaching purposes.
Take note that ‘free use’ and ‘fair use (or ‘fair dealing’ for Canadian authors) aren’t interchangeable terms. ‘Free use’ pertains to the minimum standards that signatory states are required to respect by the Berne Convention.
- Free use is the minimum standard set by the Berne Convention.
- Fair use is the US iteration of this (theirs is open-ended).
- Fair dealing is Canada’s, not open-ended, and closer to the minimum standard than the US.
Generally speaking, using the US as an example, the courts consider four major factors in order to determine what constitutes fair use or copyright infringement.
1. The Purpose and Character of the Use
The latitude for copying or excerpting original material is generally wider in scope for teaching, noncommercial research, news reporting, commenting, review, criticism, and uses such as those for parodies which may fall under something called transformative use.
2. The Nature of the Copyrighted Work
Works of fiction are not as highly protected as those for works produced in order to present facts, such as those involving history, technical, science, and other similar factual-based subjects. Due to the fact that copyright protects original expression exclusively, facts in and of themselves do not fall under the protection of copyright.
The only element with regard to published factual information that may receive copyright protection would be the original arrangement or selection of the material. Quoting fiction for purposes of review or criticism, as long as the length of the excerpt used is reasonable, generally falls under fair use. If, however, you quote any material that has been previously unpublished, regardless of whether it is fact or fiction, you are likely falling outside the bounds of fair use.
3. The Amount and Substantiality of the Portion Used in Relation to the Work as a Whole
The quality of the content, as well as the quantity of the portion quoted in terms of percentage of the entire work, are both factors that the courts consider when determining the applicability of fair use. There is no set rule regarding unallowable quantity – each situation is unique and judged independently.
Even if the number of words copied is quite insignificant, if the ‘substantiality of the portion used’ reflects the core meaning and message of the original work, in other words its heart, its new use may represent a copyright violation. Another factor used by some courts is the proportion quoted from the original work in relation to the new work.
4. The Effect on the Market
A major factor related to the allowable application of fair use by the courts involves the issue of whether or not the copied content takes away the commercial value of the original author’s work. An example of this might involve quoting significant portions of the chapter of someone’s book, regardless of the purpose involved for using the content. If the content copied provides the buyer of the new work with information and solutions they would have normally had to pay for by purchasing the original work, the new use may constitute copyright infringement.
There is an additional point to keep in mind when considering fair use/fair dealing and how the concepts may apply in the courts. Juries and judges can be unpredictable as to how they apply and enforce the above-mentioned factors. Much of the time the result of a case may depend upon the judge’s perspective and experience, the assertiveness of the copyright owner, and of course, the facts of the case.
Seeking Permission to Quote
The process of
And, even if your new use of the content falls under fair use provisions, it is incumbent upon you to always credit your source.