[Air-L] seeking advice regarding research on photo-sharing websites

[Annette Markham]

I recently ran into a similar problem, so I figured I'd add to the
discussion by way of (long-winded, sorry) example.  My example is more
relevant to legal issues of copyright and fair use in scholarly publishing,
versus the other issues Charles, Phillipa, and Danielle have mentioned.

For an article I was writing, I wanted to use some images I found in
various places on the web to illustrate network analysis techniques. I
considered these images to be necessary to make my argument.  I reasoned
that as academics, we need to be able to use whatever evidence is necessary
to support our points.  We generally accept that written materials can be
quoted, as long as we cite the source and follow some other guidelines.  In
theory, we should be able to use images in similar ways, but this has
remained a challenge.

Depending on the laws of the country in which one is publishing, the use of
images/photos in academic works might fall under the principle "Fair
Dealings" or "Fair Use."  in very basic terms (and referring to the
specific U.S. concept), this means that if my purpose is to comment on,
parody, or critique copyrighted material, and the use would be limited and
transformative, I do not need to seek permission from the copyright owner.
Fair use is a defense against claims of copyright infringement. (There are
good overviews of the concept online--I use Stanford University and
Columbia University copyright sites)

The International Communication Association recently published a code of
best practices for fair use in scholarly research in communication:
http://www.centerforsocialmedia.org/fair-use/related-materials/codes/code-best-practices-fair-use-scholarly-research-communication
 .  This best practice document is not a legal safeguard, but outlines
some excellent considerations.  It is the most comprehensive document
available (to my knowledge) on the use of media in scholarly work.

Here are the key points from that document I found helpful in determining
that I was using the images fairly.  They go further than any other
specifications for fair use, but again, they're based on the U.S. principle
of fair use, so these points may not apply in other countries.

1) Previously, it has been assumed that if use is fair in the classroom,
that doesn't mean it's fair for scholarly publications.  The ICA guidelines
argue differently, noting that in communication scholarship, fair use
principles extend to published works, not just education in the classroom:
"If a use is fair in the course of scholarship, then it is fair in the
publication and distribution of that scholarship by any means, including
publishing and media distribution, and in the archiving of that
scholarship."  They go further to note that fair use is not medium specific.

2) "Scholars may invoke fair use to reproduce copyrighted material where it
serves to explain or illustrate their scholarly insights or conclusions
about communications in relation to social, cultural, political, or
economic phenomena. Generally speaking, such uses transform the material
reproduced by putting it in an entirely new context; thus, a music video
clip used to illustrate trends in editing technique or attitudes about race
and gender is being employed for a purpose entirely distinct from that of
the original, and is typically directed to an entirely distinct audience
from that for which it originally was intended."

3) Fair use applies to the use of images as much as the use of text,
despite common misunderstandings to the contrary. This is an important
adjustment to the pre-digital era assumption that multimedia communication
forms should be treated differently than textual forms of quoting.  "Fair
use is in wide and vigorous use today in many professional communities. For
example, historians regularly quote both other historians’ writings and
primary textual sources; filmmakers and visual artists use, reinterpret,
and critique copyrighted material; scholars illustrate cultural commentary
with textual, visual, and musical examples. Equally important is the
example of commercial news media. Fair use is healthy and vigorous in daily
broadcast television news, where references to popular films, classic TV
programs, archival images, and popular songs are both prevalent and
routinely unlicensed."

Based on these arguments from the ICA committee on fair use, and my further
study of Fair Use principles, I was confident that if I were publishing in
a U.S. outlet, I could make a solid argument for using the images without
seeking permission.  Even so, the area is gray and likely to remain so for
many years. While some publishers regularly reproduce graphics under the
principle of fair use, others refuse any use of graphics without
copyrightlicense.

Well, at the end of the day, because I was publishing in Denmark, my
research and reasoning didn't apply. Turns out Danish law does not
recognize fair use, so copyright permission must be approved in writing for
any image I want to use.  This rule applies regardless of where the images
come from. So I cut all the images from the article.

I don't know much about Swiss copyright law. I do not believe Switzerland
has anything like a "Fair Use" principle.  But there may be provisions that
specify the (unencumbered) use of copyrighted materials for
educational/academic purposes.

Annette

*****************************************************
Annette N. Markham, Ph.D.
Visiting Scholar, Department of Communication
University of Arizona, Tucson

amarkham at gmail.com
http://markham.internetinquiry.org/

Co-Editor, International Journal of Internet Research Ethics
http://www.ijire.net <http://www.ijire.net>


On Sun, Feb 26, 2012 at 12:19 PM, Jeremy hunsinger <jeremy at tmttlt.com>wrote:

> Well, I think he should ask permission, but mostly because it is the
> ethical option.  I expect that if he explains his use is non-profit
> and research oriented, he'll be fine.
>
> I think that I would suspect that he would need to seek a lawyer's
> opinion as to whether the terms of use actually apply to his case at
> all, it is not always clear that they are enforceable across borders,
> or that all of there terms are legal across borders. I am not a
> lawyer, so i am just skeptical about it.
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