They're reputable, yes.
But I'm afraid the words you quoted ("
Has the use of the work impacted negatively on the market for the original work? If the creator or owner has lost potential revenue through the re-use of their work, it is not likely to be fair.") don't appear in that link. What does appear is the following:
"
Factors that have been identified by the courts as relevant in determining whether a particular dealing with a work is fair include:
• does using the work affect the market for the original work? If a use of a work acts as a substitute for it, causing the owner to lose revenue, then it is not likely to be fair
..."
and the message the bullet point in that conveys is similar enough to your quote that I can believe it's simply been edited at some point - though if the "Last updated" date at the top of the page is to be believed, on or before 18 November 2014. Perhaps you had an old version of the page or the quote lying around and used it? Or have misremembered exactly where you got the quote from?
Somewhat more important, you introduced the quote with "
The exceptions to the 'fair use' rule include:" and the quote I've found in your link doesn't say that it's an exception, but rather that it's a factor the courts take into account when deciding whether dealing is fair. Coupled with the fact that the link indicates that it's guidance rather than rules, that puts a somewhat different complexion on your conclusion that "
it is likely that is the exception the Independent would seek to rely on". Specifically, it indicates that the Independent might well argue about the fairness of the "fair dealing" involved in any quoting, and therefore that anyone quoting it would be well advised to keep
well within the established boundaries of "fair dealing".
melonfool wrote:" the "not likely to be fair" wording is rather too vague to be a legal test."
I don't think TLF is interested in getting into any 'legal test', that's kind of the whole point.
Yes, and as I think the rest of what I wrote made clear, I've got that point: TLF does not want to risk getting into any sort of legal trouble, and I completely understand why not. But that position is basically "we don't want to take any more risk than we can help, and if the copyright owner objects to quoting, that indicates a risk we want to avoid, whether or not their position is legally justified", and it does
not depend on any legal arguments.
You chose nevertheless to engage with the legal arguments in the comments I addressed - which is fair enough, but I think it's also fair enough to reply to say that the way you've engaged with the legal arguments is misleading. I don't expect that to change the position TLF has chosen to take, but I do expect it to affect readers' understanding of the legal position
they are in.
One other comment on TLF's position: I get the feeling that there is also an element of "we don't want our position to impose any more work on moderators than we can help". But actually, I think it imposes more than it needs to - specifically, the need to check when the question arises whether a site's terms & conditions forbid quoting, which (a) can involve quite a bit of searching - some sites are very coy about their terms & conditions, and (b) as this thread has indicated can involve quite a messy decision rather than a straightforward yes/no answer. In addition, I very much doubt that you're going to get many posters doing that work every time they want to quote something, so I expect the question to arise quite often...
It would IMHO be no more risky and quite a bit less work for moderators to simply have guidelines that stay well within the boundaries of "fair dealing" plus a practice of automatically deleting quotes if and when the copyright owner objects. Those guidelines could be something like:
* you must attribute a quote, with a link if possible (it's not always - e.g. someone might quote from a printed book);
* the quote must be a
small part of what it comes from;
* you must comment on the quote;
* the quote must be no more than is needed for your comments;
* you mustn't use well-established unfair quoting tactics such as quoting out of context, editing the quote to change its meaning, or editing the quote without leaving a clear indication that you've done so.
They can all be checked in the quoting post itself or the attribution link (if it exists) - which should both make it easier for moderators to check up on it when the question arises and make it arise less often because posters are more likely to 'self-police'.
Gengulphus
