A Fair Shake for 'Fair Use'

WHAT would a history of the Civil War be without poignant quotes from soldiers' letters written on the eve of battle? Or a biography of a president, suffragette, or novelist without excerpts from the subject's diary, letters, and unpublished manuscripts? Dry, incomplete, even misleading. Yet under current United States copyright law, a historian or biographer runs a high risk if he quotes from a person's unpublished writings - even if the person's letters, notes, and other papers are found in a public archive, not an attic trunk.

Copyright laws protect the producers of written, visual, or audio works from piracy that could detract from the works' value. However, the law has long made an exception, allowing as "fair use" limited quotations from protected works for purposes of criticism, teaching, journalism, and scholarly research.

Until recently, authors and publishers assumed that the fair-use exception set forth in Section 107 of the US Copyright Act applied to unpublished as well as published writings. Two cases decided by the federal court of appeals in New York, however, have seemed to prohibit any fair use of unpublished letters, diaries, memos, etc., without the permission of the writer or his heirs.

In the first case, decided in 1987, the court prohibited biographer Ian Hamilton from publishing excerpts from letters written by the reclusive novelist J. D. Salinger that Hamilton found in university archives. In the subsequent 1989 case, the judges similarly ruled that excerpts from unpublished writings quoted in a biography of the late L. Ron Hubbard, the founder of Scientology, violated the copyright statute.

The rulings sent a chill through the ranks of American nonfiction writers and the publishing houses. Prominent authors wrote and testified against the decisions. The rulings, they said, would strip much of the vividness and authenticity out of history and biography, and the cases empowered the producers of unpublished works or their heirs to censor potentially unflattering portrayals.

This month US Sen. Paul Simon - author of a book on Lincoln and 11 other books - introduced an amendment to the copyright law that would permit limited fair use of unpublished works. The bill recognizes that unpublished writings deserve special protection, as the creators have not released such works into the public domain; so it provides that absence of publication "is an important element which tends to weigh against a finding of fair use." Nonetheless, some quotation from unpublished writings may be p

ermissible after "full consideration" of the ordinary fair-use tests having to do with quotations' purpose, extent, and possible effect on the market.

Senator Simon's bill reasonably balances the rights of the originators of unpublished works and a culture's interest in the dissemination of knowledge. Congress should enact the fair-use bill to prevent any impoverishment of American scholarship.