[Air-L] Permission to reproduce webpages?

Brian Holland bholland at law.txwes.edu
Wed Sep 1 13:27:01 PDT 2010

(My first contribution. You can tell me if it should be my last)


I would suggest that, at least under US law, the question is much fuzzier that it may first appear (and that is a very bad thing, but that's a different email).

Categorical fair use exemptions are few and far between.  Educators have, I think, generally assumed greater fair use exemptions than actually recognized by the courts or the copyright office.  For instance, although not strictly a fair use case, only very recently has the copyright office recognized an exemption to the DMCA for use of film clips in the classroom.  Moreover, where courts have found educational fair use, it has generally been in the classroom setting and the preparation of scholarship, and less so in the publication of scholarship.

There may be a perception (for good reason) that educational uses are particularly privileged because they are specifically mentioned in the fair use statute. But this can have the inverse effect we often see in contract law -- express provisions end up limiting educational fair use to those specified.  Here, the fair use statute (section 107) provides that fair use includes:

"reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research"

But there are both express and inherent limits in this right.  One of the most troublesome is that you cannot use "more than necessary" -- however a court would interpret this.  That limitation alone has struck down many apparently robust claims of fair use.  Likewise, it is not clear whether "scholarship" includes distribution, although comment and criticism usually does (at least if you haven't used "too much" of the original).  What if it is a commercial publication? What does it even mean to be "commercial"? etc. etc.

I could go on and on (that's what lawyers and law professors do ...), but in sum my points are these: (1) educators often perceive their fair use rights to be broader than those actually recognized by the courts and the copyright office, at least so far, (2) fair use is not categorical and objective, meaning you often cannot "know" that something is fair use, (3) fair use is always fact-specific, and thus decided on a case-by-case basis, (4) fair use determinations are made by reference to four statutory "factors" -- not elements that you can check off -- so in many cases it is very difficult to predict an outcome, and (5) fair use is, at the moment, a very messy and unstable doctrine in US law.  When you add to this that copyright infringement usually presumes harm, and that statutory damages can be very high, the end result is a chilling effect on speech -- particularly evaluative and critical speech.  Publishers simply cannot (or will not) afford the risk.  In fact, almost every law review/journal publishing contract requires the author to indemnify the publication for any copyright claims.

Yes, we should push publications, but should also realize that the fair use determination is unfortunately a very difficult and risky one.  Educators should also push congress and the copyright office for more definitive protections.

P.S.  The Columbia checklist, although helpful, can be a bit misleading in the sense that it suggests (if it does so) that enough checkmarks = fair use.  The calculation is simply much more subjective/complicated/messy.


H. Brian Holland
Associate Professor of Law
Texas Wesleyan University School of Law
1515 Commerce Street
Fort Worth, TX 76102

Phone: (817) 212-3923
Email:  bholland at law.txwes.edu


-----Original Message-----
From: air-l-bounces at listserv.aoir.org [mailto:air-l-bounces at listserv.aoir.org] On Behalf Of Annette Markham
Sent: Wednesday, September 01, 2010 1:06 PM
To: air-l at listserv.aoir.org
Subject: Re: [Air-L] Permission to reproduce webpages?

Hi Andre,

It's probably clear to you how it falls within fair use, but it might be
worthwhile to do a bit more work to help the journal editorial staff
understand that this is actually fair use, if you haven't already.  It seems
to me that if the screenshot is part of the analysis, it's worth arguing a
bit more about it with the journal, rather than accepting their
assessment--which may be based on misinformation or confusion about
copyright or fear about claims of copyright violation.

There's a widely used form at Columbia that might help demonstrate how the
use of the screenshot falls within fair use.

There's also an online fair use evaluation tool that provides you an
archival copy of the results of your fair use analysis.  This can be useful
for your own and the journal's purposes.

Good luck,


Annette N. Markham, Ph.D.
Senior Research Fellow, Internet Research Ethics
  Center for Information Policy Research
  University of Wisconsin-Milwaukee
amarkham at gmail.com

Co-Editor, International Journal of Internet Research Ethics

On Wed, Sep 1, 2010 at 8:22 AM, Andre Brock <andre.brock at gmail.com> wrote:

> For the first time in, well, ever I've been asked by a journal to obtain
> permission from a website to reproduce a screenshot of a webpage.   Not, to
> be clear, of an image on the page - but of the page itself.   I've been
> offered the option of removing the image and replacing it with a URL, but
> from an archival standpoint that's problematic.  Webpages with dynamic
> content change all the time, not to mention that authors sometimes change
> formats/platforms, modify pages, or remove content that was included in the
> original analysis.
> I don't want to miss the publishing deadline, but I need to know: "where
> dey do dat at?!?" (translation: since when did fair use guidelines get bent
> so badly in academic publishing?)
> André Brock
> Assistant Professor, SLIS/POROI
> University of Iowa
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