Monday, December 7, 2009

Colleges Should Protect Humanists in Fair-Use Cases; Chronicle of Higher Education, 12/6/09

Carol Loeb Shloss, Chronicle of Higher Education; Colleges Should Protect Humanists in Fair-Use Cases:

"Did you see the news item that a Stanford professor had won a six-figure settlement from the James Joyce estate? That was me.

I am happy about the outcome of the lawsuit, but I'm also concerned for other humanities scholars working on projects that might leave them exposed to the same kinds of legal pressures and risks that I faced, risks that their colleges usually don't cover.

To make a labyrinthine saga short, in September I won $240,000 from the Joyce estate to cover legal fees incurred in the battle to publish a Web site containing evidence deleted from my book Lucia Joyce: To Dance in the Wake (Farrar, Straus & Giroux, 2003). The estate threatened to sue first me and then the publisher if the book included quotes from Joyce's writing. I edited out important material from Joyce's notebooks, and the publisher took out even more evidence. With help from Lawrence Lessig, the Stanford Law School Center for Internet and Society's Fair Use Project, and other counsel, I went to court and, in 2007, won the rights to quote the documents on an online site.

But my legal victory obscures several major questions that should concern every humanities scholar on American college campuses. What role should colleges play in protecting their faculty in potential copyright disputes? Why should copyrights, when they are generated by faculty members, be excluded from university risk-management policies? Why does a special Fair Use Project like the one at Stanford have to exist at all? The underlying lack of protections exposed by this case indicates that humanities scholars throughout the country would benefit from a restructuring of university risk management.

In 2007 when the first stage of the Shloss vs. the Estate of James Joyce settlement was reached, Lessig, the founder of the Stanford Fair Use Project, said: "We will continue to defend academics threatened by overly aggressive copyright holders, as well as other creators for whom the intended protections of 'fair use' do not work in practice. I am hopeful that this is the last time this defendant will be involved in an action like this. But it is only the first time that we will be defending academics in these contexts."

The Fair Use Project is exemplary. But without it, I would have been exposed to threats that the university claimed belonged solely on my shoulders. The back story illustrates the structural inequalities that leave others in my position vulnerable, for I was receiving threatening letters from the Joyce estate long before I began to work with the Fair Use Project.

In such circumstances, one might assume that humanities scholars are covered by the university's risk-management department, whose purpose, at least at Stanford, is "for humanitarian, social, legal, and financial reasons," to "protect the health and safety of members of the community." The mission statement reveals that "in order to fulfill these objectives, we will consider all types of risks, including but not limited to natural risks, environmental risks, political risks, compliance risks, economic/business risks, social risks, and technological risks."

But that list, in my case, excluded the risks of publishing books. Although the university covered hazards related to "property, casualty, workers' compensation, crime, boilers, machinery, bonds, builder's risk, overseas programs, athletic programs, travel accident, etc.," and although the university routinely covered its medical faculty and researchers, humanities scholarship was considered by the general counsel to be outside its scope. There were two invisible categories for faculty members: one classification for medicine and the sciences and another for writers of books. Producers of patents were covered for their inventions. The only recourse for producers of copyrights was a media-perils insurance policy, purchased at the writer's personal expense.

Stanford is not alone in its approach to protecting humanities scholarship. Other college administrations also omit explicit references to protection of book publishing in their risk-management policies. They define risk as threats to a university's ability to "achieve its objectives," and cite strategic, compliance, operational, technological, and other such categories, or even specific areas of liability like aircraft, alcohol, automobiles, boilers, builder's risk, business travel, and so on. But you won't generally find explicit mention of risk to humanities scholars. Why not? Isn't producing knowledge a university objective?

One might argue, as did the general counsel of Stanford University in letters to me in 2003, that this is an appropriate policy because writers of books in the humanities are only expressing an opinion or a point of view. The university, as an institution, has no obligation to defend any attitude held by a single individual. Or one might contend that patents have a greater claim to institutional protection because university property is usually involved in generating inventions. Without the equipment in laboratories, scientists or engineers could not fulfill the demands of their experiments. Their work innately involves overhead that the university has assumed in the interest of progress. Or, more cynically, one might consider that patents usually generate income for the university, jobs for graduate-student assistants, and recognition in the corporate, industrial, and military worlds.

But such views ignore the degree to which colleges benefit from the work of humanities scholars, the implicit cost of creating a "two-tiered" faculty, and the extent to which academe's founding principles are put to the test by distinguishing between copyrights and patents.

When the work of a humanist is prohibited by an overly zealous copyright holder, as it was in Shloss v. the Estate of James Joyce, what is at stake is freedom of inquiry, not just the defense of an opinion or a point of view. Humanistic research is not simply a personal pursuit, but the very condition of any scholar's employment and as such inseparable from her or his professional duties. Why should it matter what field a faculty member belongs to? Invention is invention, discovery is discovery, and progress in human understanding isn't, or at least shouldn't be, limited to what contributes most to corporate, industrial, or military advantage.

If colleges are not simply handmaidens of financial profit, but authentic in their claim to be impartial proponents of progress, then the humanities, which speak in the voice of copyright, must be honored and protected with the same structures of risk management that govern the sciences. If colleges claim benefit, as they do, from the prestige of humanistic endeavors, then colleges should shield the risks incurred by those contributing to those benefits. They should not leave a large portion of the faculty unprotected. It is this general failing that is the precondition of the Stanford Fair Use Project. Were this not the case, there would have been no reason for Lessig to say to me, "This should not be happening to you." For it would not have happened.

Carol Loeb Shloss is a consulting professor of English at Stanford University. She is author of Lucia Joyce: To Dance in the Wake (Farrar, Straus & Giroux, 2003), supplemental material for which can be found at"

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