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Copyright
Guidelines By: Joe Ogrodnick
“Only
one thing is impossible for God – and that is to find any sense
in any copyright law on the planet……..Whenever a copyright
law is to be made or altered, then the idiots assemble” -Mark Twain
The legal, moral and ethical issues associated with digital photography, scanning and the use of images found on the WWW are complex. This article attempts to answer queries to Communications Services on the subject from Dave Rosenberger of the Hudson Valley Lab, and pertains to image use by Station researchers in slide presentations, particularly. Like many laws in the United States, copyright law had its origins in England, when, in 1710, the British Parliament enacted “The Statute of Anne.” Eighty years later, the United States Congress enacted the Copyright Act of 1790. Major revisions occurred in 1831, 1870, 1909 and 1976 and came about for various reasons. They included broadening the scope of what is covered, changing the term of a copyright, and taking into consideration new technologies. The 1909 revision, for instance, broadened the scope of categories protected to include all works of authorship and extended the number of years of protection, and two important sections of the 1976 revision extended copyright protection under certain circumstances to radio and television broadcasts and allowed library photocopying without permission for purposes of scholarship. Copyright law throughout its history has always been difficult to understand, interpret, and apply. Peter Hirtle, Director of Cornell’s Institute for Digital Collections, in a recent lecture on Copyright Law and Distributed Learning, characterized copyright law as “a quicksand and something that defies all logic.” John Barlow states in Wired, 1994, that “As a result of the new technology, everything we think we know about intellectual property is wrong.”Also, in 1996, Anne Fujita writes in the Journal of Technology and Policy, that, “There is no doubt that the new technology of digitization will have a profound effect on copyright law.” John Pavlik writes in New Media Technology in the same year, that, “Earlier generations of technology have presented challenges to existing copyright law, but none have posed the same threat as the digital age.” On October 12, 1998, the U.S. Congress passed The Digital Millennium Copyright Act (DCMA) and, two weeks later, President Clinton signed the measure into law. Educause: Current Issues, a web-site out of Washington, DC, identifies as key among the topics included in the DMCA are “the provisions concerning the circumvention of copyright protection systems, fair use in a digital environment, and online service provider (OSP) liability including details on safe harbors, damages, and ‘notice and takedown’ practices.” As a photographer, I am neither a lawyer nor scholar in copyright law. To attempt to read, digest and assimilate all that is available from the Internet and otherwise on this topic proved to be a daunting task, so I sought advice and enlightenment from two sources: Cornell University Associate Counsel Patricia McClary , and two members of the BioCommunications Association who have dealt with these issues extensively, Charles Hedgecock who is a Senior Research Specialist and photographer for the Arizona Research Lab’s Division of Neurobiology, University of AZ, Tucson and Tom Owoc, a photographer at Wayne State University School of Medicine. First we will deal with the responses to Dave Rosenberger’s questions from the two photographers:
In a separate e-mail; Hedgecock offered this advice: “I sometimes ask people to substitute the words ‘Photo on the web’ with ‘Car with the keys in it.’ Thus: ‘I found a car with the keys in it, can I just take it? Or should I find out who owns it and ask first?’ ”
Pat McClary makes reference in several of her responses to the “Fair Use” exception of copyright law, and in her response to question #2 lists the four factors that must be considered in determining what is and what is not fair use. A University of Texas website says of fair use that “We would all appreciate a clear, crisp answer to the question, what is fair use? But far from clear and crisp, fair use is better described as a shadowy territory whose boundaries are disputed, more so now that it includes cyberspace than ever before. In a way, it’s like a no-man’s land. Enter at your own risk.” From what I have read, (and remember I am not a lawyer) my interpretation of the fair use exception is that it favors the limited use of scanned images and images from websites in scenarios such as department seminars, national and international professional meetings and extension talks since these situations are educational and not for profit. I would, however, be reluctant to say that the same materials used in a presentation made to say a chemical company as a paid consultant would be considered fair use. Someone recently mentioned to me that copyright in most cases is a “toothless” law. I passed this along to Ms. McClary whose response was: “I would disagree to some extent with this statement. The copyright law contains several provisions that are helpful to plaintiffs and encourage the bringing of infringement suits. These include 1) the awarding of ‘statutory damages’ (generally ranging from $750 to $30,000 per infringement) to owners of infringed works even when the owner is unable to prove that he or she has suffered any economic loss and 2) the awarding of attorneys' fees to the prevailing party—this is rare under US law; a copyright owner with a strong case would not have to hesitate to bring a lawsuit because of the fear that he/she would have to pay his/her attorney's large fees; these could be recouped from the infringer in addition to other damages. The law does contain provisions reducing the amount of damages that can be assessed by innocent infringers (having no reason to believe that his/her actions constitute infringement) and nonprofit educational institutions and their employees who have reasonable grounds for believing that their use of copyrighted material is a “fair use” (under the 4 factor test). These latter provisions tend to discourage lawsuits against colleges and universities.” And so it appears that copyright law in the digital age remains as complicated, convoluted and vague as it has been over the many years of its existence. Perhaps the best advice is to exercise caution and ask permission. Thomas Field, Jr., from the Franklin Pierce Law Center, points out on one of the Center’s web pages, that “A poem or picture is as much protected on a disk or hard drive as it is on a piece of paper or canvas.” And this from The USGenWeb Project : “The internet is nothing more than another method of publication. Original wording appearing on a web page cannot be reproduced without permission. A web page cannot reproduce material subject to a valid copyright without permission.” It can be inferred from the above statement that original photographs are entitled to the same protection as original wording. Even the manufacturers of digital hardware echo a cautionary note. Epson’s Operator's Manual for their Perfection 1250 Flatbed Scanner, 2001, includes a note concerning responsible use of copyrighted materials. “Digital cameras and scanners, like photocopiers, conventional cameras, and ink jet printers, can be misused by improper copying or printing of copyrighted material. While some countries’ laws permit limited copying of copyrighted material in certain circumstances, those circumstances may not be as broad as some people assume. EPSON encourages each user to be responsible and respectful of the copyright laws when using digital cameras, scanners, and ink jet printers.” I contacted Bugwood, an insect photo archive and asked the following question: “The use of images section on your web page does not say anything about using images in a talk or seminar as opposed to publication. These presentations are made to peers such as at a department seminar or regional or national entomology meetings. Should information be superimposed on the image itself (slide or electronic image) - if so, how much? - the example citations you provide would prove rather unwieldy. Is there an abbreviated form that could be used as to not detract too much from the photo? -or could attribution be given verbally or in an acknowledgment slide?” The owner of the site replied “For presentations, just use the image as is. If you want to give the photographer credit then list it for example as C. Bargeron/forestryimages.org. Or as you said, list the site as part of the acknowledgments. For presentations to chemical companies, that would still be considered educational use as far as we are concerned.” These requirements will, of course, vary from site to site. Cornell is developing a copyright site as a joint effort by the University library, University Counsel, and Information Technologies. Although the site is not yet complete, there is some information currently available including Cornell’s Copyright Policy and a section entitled: Web Page Guidelines: Content, Ownership and Responsibilities. In the meantime, University, Pat McClary offers these guidelines: “In general, the rules for scanned images are the same as those that apply to hard copies i.e. those which provide access to the materials may impose license conditions (look for the fine print on those image repositories). ‘Fair use’ permits the making of one copy for individual research or scholarship. Beyond that, one should probably get permission. You should assume that all works are copyrighted even if they don’t have a copyright notice because the notice requirement was removed from the law back in the 1980’s.” United States Copyright Office, The library of Congress 10 Big Myths about copyright explained Copyright Law in the Electronic Environment The Great Internet Panic: How Digitization is Deforming Copyright Law Copyright and Fair Use in the Classroom, on the Internet, and the World Wide Web |