Timed to coincide with the recent meeting of MLA in Philadelphia, a three-hour symposium to develop “best practices” of Fair Use in the citing of poetry was organized by the Poetry Foundation on 30 December, at the Franklin Institute. A notably expert group of poets and critics, led by a Washington, D.C.-based intellectual property lawyer, sought consensus (and divergence) around issues of the citation/appropriation of poetry in critical and creative works and the degree of protection that should be afforded to published, unpublished, and archival material. The process will continue, with the eventual goal of establishing recommendations for Fair Use in citing poetry that would encourage, rather than exploit in various forms of cultural profit-taking, public critical discussion of poetry.

My position is and always has been that copyright depends in principle on two opposed interests: the interest of the artist or writer in her labor, and the right of the public to culture as a general good. Copyright law is meant to embody this opposition in the time limits for copyright: in the summary of Nolo, a legal advice website, these statutes are:

1. Works published from 1909 through 1921.
The initial copyrighted term of the work was 28 years from the date of publication. If the copyright was renewed during the 28th year, the copyright was extended for an additional 28-year period.

2. Works published from 1922 through 1963.
The initial copyrighted term of the work was 28 years from the date of publication. If the copyright was renewed during the 28th year, the copyright was extended for an additional 67-year period.

3. Works published from 1964 through 1978.
The initial copyrighted term of the work was 28 years from the date of publication, with an automatic renewal of an additional 67 years.

4. Works created on or after January 1, 1978.
The following rules apply to published and unpublished works:

  • For one author, the work is copyright-protected for the life of the author plus 70 years.
  • For joint authors, the work is protected for the life of the surviving author plus 70 years.
  • For works made for hire, the work is protected for 95 years from the first publication or 120 years from the date of its creation, whichever is less.
  • For anonymous and pseudonymous works, the work is protected for 95 years from the first publication or 120 years from the date of its creation, whichever is less. (However, if the author’s name is disclosed to the U.S. Copyright Office, the work is protected for the life of the author plus 70 years.)

 [http://www.nolo.com/legal-encyclopedia/checklist-29483.html]

Such distinctions, however, seem to have no bearing on web practice, where poetry is routinely reprinted without any form of permission or even citation. In the discussion, I raised the issue of the too-frequent publication of poetry in blogs as not simply a legal issue but an ethical one—the “otherness” of the work, and the labor of the person who made it, is too easily textualized into one huge “creative commons,” losing precisely the difference and particularity that gives the work its distinction, value, and agency.

I stand by my sense that the alterity and difference, not to mention distinction and value, of the particular work needs to be respected—in some way, even in the hyperlinked and distributed culture of the internet. What then becomes of Fair Use as a part of a critical discussion, or even a direct link to the work if it already exists online, if not a form of generalized textuality? Could one conceivably see the citation of poetry online as similar to “grabbing” an image via hyperlink—so that the poem “exists” in the place where it was accessed, and is only represented as accessed digitally?

I am now not entirely sure how I feel about this ethical dilemma. How is the presumed right to link to a poem different than what might occur by printing a whole poem (the “substantial portion” of the work test of Fair Use) in a critical account, which nearly (but not entirely) everyone agrees ought to involve permission and even money changing hands? On the other hand, doesn’t the mere fact of “linking” bring with it a recognition of the otherness or alterity of the cite linked—which still exists, as does a published book, as “somewhere else”?

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