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

Dan L. Burk dburk at uci.edu
Sun Feb 26 21:21:46 PST 2012

To my knowledge, the *only* countries that have fair use are the United
States and Isreal.

Many other nations have specific statutory exemptions for scholarly uses
(part of what some Commonwealth nations call "fair dealing" -- not to be
confused with fair use) but by no means all, and the extent of the
exemption will vary by country.

I'm a little surprised that Denmark doesn't have a scholarship exemption,
but even within the EU/EEA there is pretty wide variation.


> 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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