[SIGCIS-Members] Copyright advice sought

Fri Jul 20 00:37:48 PDT 2018

Dear SIGCIS,

Thanks to everyone for the feedback on copyright. After chasing down folk’s links, and conferring with a few of you one on one, the closest thing to a consensus seems to be that in the USA fair use is a far-sweeping well established legal right that covers the vast majority of uses we’d be making of images (esp. when the image goes beyond mere “illustration” and instead becomes part of an original analysis), yet individual presses often have policies on permissions that are stricter than required for fair use. Actually getting chased down for using an image of the sort “we” are likely to use seems fleetingly rare (if anyone has a personal experience to the contrary, I’d be interested to hear about it!). But going to the publisher with a strong case for why images are fair use may go a long way towards getting some leeway, and the guides/references folk sent around are helpful. 

The College Art Association guide linked by Matthew was very helpful, and this claim about fair use jumped out at me: “the Code refers users to generally applicable professional standards, which, in turn, may evolve over time.” I think part of the point of the guide is to provide that academic community with those standards, implying to me that the conversations on SIGCIS are not only informal advice about fair use but also have the potential to become part of the standards that are the fabric of legally-binding fair use decisions! 

I also found the Society for Cinema and Media Studies guide on fair use helpful: https://c.ymcdn.com/sites/cmstudies.site-ym.com/resource/resmgr/docs/scmsbestpractices4fairuseinp.pdf A key point mentioned there, that I don’t think came up in our conversations is that “Media scholars should only employ as much of the copyrighted work as necessary to illustrate the point or argument. It should be clear in the body of the text or the caption why this work has been chosen.” That kind of approach has helped liberate still frames or brief series of frames of movies for media scholars’ analysis, for example. 

Thanks again for the feedback, everyone.

Best, b

From: Members <members-bounces at lists.sigcis.org> on behalf of Michelle C Forelle <mcforelle at gmail.com>
Date: Sunday, 15 July 2018 at 14:56
To: <REBELSKY at grinnell.edu>
Cc: <members at sigcis.org>
Subject: Re: [SIGCIS-Members] Copyright advice sought

Hi all, 

Thought I could contribute some useful info, with some help from my colleague and fair use expert Patricia Aufderheide. Given the amount of misinformation large media corporations and software associations have purveyed over the years, it's no wonder there's a lot of confusion about fair use. Some things to keep in mind:

1) Fair use is a right, as the Supreme Court has recognized affirmatively, and its technical designation as a defense doesn't make it any less of a right. Your right to self-defense is a right, although it is a defense. 

2) Fair use isn't complicated to interpret, in most common cases. In fact, you probably used fair use today without thinking about. Every time we quote another scholar in our work, that's fair use. Every time search engines temporarily copy documents to scan them for relevance, that's fair use. 

3) The Codes of Best Practices in Fair Use, which are available at csmsimpact.org/fair-use, are extremely valuable for providing user-friendly logic for fair use in specific disciplines. They exist for communications research (might be the most pertinent for the original question), documentary film, media literacy, visual arts (as noted in this thread), journalism, film studies teaching, open courseware, nonfiction writing, museums and archives facing orphan works problems, and film studies research. Forthcoming is a best practices code on software. 

4) To echo SamR's comments, of course judges can find that a use is not fair, just as they can find that a use is obscene, or defamatory, or treasonous. That doesn't make the First Amendment any less real as a result. This is why Codes of best Practices are so helpful--they show what is generally accepted in a field already, and therefore unlikely to be found outside the acceptable in court, and therefore unlikely to draw any legal action from a copyright holder. Risk is a known feature of expression and of life in general. So the question is not whether you are risk-free (unless you don't want to express yourself at all), but what the risk is. Having consensus codes of practice is a way of vastly lowering risk. Documentary filmmakers found that it lowered risk so dramatically that insurers changed policy 180 degrees from "no" to "yes" on insuring against fair use claims, once they knew the expectations of the field, through the filmmakers' code. 

All of this and more is covered in a very handy book by Aufderheide & Jaszi, Reclaiming Fair Use: How to Put Balance Back in Copyright, 2d ed. (University of Chicago, 2018), which I highly recommend for anyone with questions about the details of how this works in practice.

On Sat, Jul 14, 2018 at 3:51 PM Rebelsky, Samuel <REBELSKY at grinnell.edu> wrote:

I am not a lawyer, but I'm pretty sure that fair use *is* explicitly stated as such in law, at least in US law, which is what we seem to be discussing.  Let's see … Section 107 of Title 17 (the section of US Law that specifies copyright) says

--- START OF QUOTED MATERIAL ---
107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by 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, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
---- END OF QUOTED MATERIAL ----
https://urldefense.proofpoint.com/v2/url?u=https-3A__www.copyright.gov_title17_92chap1.html-23107&d=DwIGaQ&c=clK7kQUTWtAVEOVIgvi0NU5BOUHhpN0H8p7CSfnc_gI&r=EkYeLh1UEDKgmiWNbN5Nrg&m=FZjkziSAqmxuqrE6iRV_v62YWJ1KacVHjB7dTDOfCnQ&s=gLmFIE41kMWux-imJ1ctjhAEbTmwP42UpKc7op3eBu4&e=

However, as you say, whether or not something counts as fair use is not specified clearly.   So, while the government cannot take away an individual's fair-use rights without changing the law, a court case can determine that a particular use is not fair use.

I would suggest that what counts as a 'creative work' and therefore eligible for copyright is also not stated clearly.  Certainly, there have been questions of whether compilations of information, like phone books, or mostly factual things, like maps, are subject to copyright protection.  And, in the end, no one has the "right" to copyright, except as stated in the law.  If Congress changes copyright law, those rights change.

Regards,

-- SamR

Samuel A. Rebelsky, Professor of Computer Science
Grinnell College, 1116 8th Avenue, Grinnell, Iowa 50112
Office: 641-269-4410 ; Fax: 641-269-4285 ; Cell: 641-990-2947
rebelsky at grinnell.edu ; https://urldefense.proofpoint.com/v2/url?u=https-3A__www.cs.grinnell.edu_-7Erebelsky_&d=DwIGaQ&c=clK7kQUTWtAVEOVIgvi0NU5BOUHhpN0H8p7CSfnc_gI&r=EkYeLh1UEDKgmiWNbN5Nrg&m=FZjkziSAqmxuqrE6iRV_v62YWJ1KacVHjB7dTDOfCnQ&s=MAME_6D4O2rG6y2jczqLumU20qLLXVyUrlxb5Bi_z_A&e=

The opinions expressed herein are my own, and should not be attributed to Grinnell College, Grinnell's Department of CS, SIGCSE, SIGCAS, any other organizations with which I am affiliated, my family, or even most sentient beings.

> On Jul 13, 2018, at 8:49 AM, Kimon Keramidas <kimon.keramidas at nyu.edu> wrote:
> 
> Just a point of clarification, fair use is not a right like copyright is as it is not explicitly stated as such in law. Rather it is an exception to copyright that has been provided by judicial precedent and has been roughly outlined in copyright law but is purposefully not clearly bound. This difference is just important to know as you move forward with concerns such as this and are dealing with legal situations and specific terminology. 
> 
> It’s kind of like driving. No one has the right to drive. The government provides the opportunity to get a driver’s license and it can be taken away. Fair use tenets can be violated as such if they are determined to be overstepped by a judge and one can then be in violation of copyright. Copyright however is automatically given to the creator upon recording of an expression in a material form and is a right that cannot be taken away.
> 
> Cheers
> Kimon

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-- 

Doctoral candidate

USC Annenberg School of Communication 

@mcforelle on the tweet machine
(407) 864-2225

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