Eileen Gifford Fenton
603 Image Databases
Professor Howard Besser
October 13, 1995
Suppose for a moment that you are a staff member in the Office of the President of Blue University, a respected nonprofit educational institution. Suppose further that the president of Blue U, President Duder, has asked you to take on an important, special project, namely to improve the existing Blue U World Wide Web (hereafter "Web") homepage which currently features eloquent prose but, alas, a total absence of images. Happily the selection and source of images is left entirely to your discretion and the project is wholly yours to manage; President Duder has given only one guiding remark: make it look good. Being a sage staff person with a recently installed scanner in your office you immediately recall several published texts that you remember containing especially nice images; further you know that the Blue U's staff photographer has also done some good work that might be just what the Duder ordered, and these both strike you as good sources for scanning into the homepage. And finally, being a reasonably skillful surfer of the Net, you know that there are several sites on the Web that have some very striking images that could quite easily be copied and added to Blue U's page. Excited about the high profile assignment, you share the details with your lunch partner, an experienced librarian, who wonders aloud about the copyright issues you might have to consider. Pretending that you were well aware of these issues and were of course planning to deal with them before proceeding, you casually remark that you plan to look into this at the outset. After lunch, you cancel your scheduled meetings and head to the Law Library to bone up on copyright law. Several hours and one headache later you emerge a wiser and slightly more cautious designer. Here's why.
According to article I, section 8, clause 8 of the Constitution, Congress has the power "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Works can be copyrighted if they are "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device" (United States 9). Among items listed in the law as eligible for copyright protection are "`Pictorial, graphic, and sculptural [PGS] works [which] include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions" among other materials (6). Also eligible are visual works of art which include "still photographic image[s] produced for exhibition purposes only, existing in a single copy . . . signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author" (8).
Through copyright protection, section 106 of title 17 of the United States Code reserves to authors and inventors five rights which they can exercise directly or authorize. These rights, which generally extend for fifty years after the death of the author (Gorman 3), are: reproduction, the preparation of derivative works, distribution, public performance and public display (United States 12). These exclusive rights are subject to some limits the most significant of which is "fair use." The fair use section (107) deliberately does not give a hard and fast rule for determining what is fair use, but states that use for "purposes such as . . . teaching . . . scholarship, or research" do fall within allowable activities if four factors, the purpose and character of the use, the nature of the work, the amount and substantiality of the portion used, and the effect on the potential market, are all taken into consideration (15). To assist potential fair users, additional non-statutory guidelines have been developed. In the nonprofit educational setting the most commonly used of these is the Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals (Gasaway 231-233).
Though there are any number of sources of images which might be scanned into the Web page of fictitious Blue U, only the three sources proposed in the opening scenario of this essay--an image (i.e., a photograph for purposes of this discussion) from an existing print book; an image created by the University photographer; and an image available on the World Wide Web--will be covered here. For an image appearing in a printed text the procedure is generally clear, though of course exceptions are always possible, most notably for works in the public domain. For those items not in the public domain and not covered by fair use (which will be discussed below), the potential user of the image should begin with the publisher of the text. The publisher may own the copyright of the particular image, and therefore may be in a position to grant permission for its use. However, it may be that the publisher is not the owner of the copyright, but rather was granted limited use of the image by the photographer who retains the exclusive rights (Brinson) in which case, permission must be sought from the author of the image.
In the case of the images created by the University's staff photographer, the situation is guided by the special status given to works "made for hire." Section 101 of the Copyright Act defines a work made for hire, in part as, "a work prepared by an employee within the scope of his or her employment" (United States 8). The language of section 201 states that in this case "the employer or other person for whom the work was prepared is considered the author . . . and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright" (56). Therefore, unless a staff photographer has a written contract with his employer specifically giving him ownership of his work, or barring some special provision of the University's policy, the employer (in this case Blue U) owns the copyright on the photographs and can use them as they deem fit.
For images found on the World Wide Web, the case is much more murky due largely to the law's silence on the kind of activity made possible through wide spread computer networks simply not envisioned in 1976. First, there is serious debate about the implications of posting a document or image on the Web. Some argue that an individual who posts in this environment "know[s], or should know, that they are joining a community in which the shared values include [documents] being as strongly cross-linked as possible"and as widely shared as possible (Oppedahl). So, the argument goes, posting a document is in fact to encourage its further distribution by hyperlink, downloading, printing or copying. Others take a less permissive view and suggest that it is not quite equitable to assume that posting a document means relinquishing all control over its fate (Lemley).
A second argument made is that there is an implied license concerning documents on the Web which stems directly from the normative behavior of this environment. Bruce Hayden has summarized this implied contract in the Coalition for Networked Information list serve on copyright, writing that those "making the web pages available promise . . . not to sue you for infringement if you download and view . . . [and] the downloader relies on that promise . . . and downloads the page and views it. . . . It's called an implied (in fact) contract (or license) since the terms were never explicitly stated, but were implied by the actions of the parties" (Hayden). This viewing, which involves copying, is considered authorized through the implied license, and is therefore allowable, barring explicit statements to the contrary. Pushing this view further some argue that a document on the Web is indistinguishable from a document in the public domain. As another participant in the above list serve noted, "the owner of the material is giving away copies. If the owner does not want to give away copies, he should not put the works up to be browsed" (Graham). If in fact the Web equals the public domain, and many also argue that it does not, then copying an image from one Web site and adding it to another would be permissible.
The above discussion has so far worked from the assumption that including an image on a Blue U Web page does not necessarily fall under the provisions of fair use. The use of digital images and their relation to fair use may be currently one of the most difficult copyright issues to resolve. The Classroom Guidelines do not address issues raised by the Web environment, and legal precedents have not yet been set in this area with regard to nonprofit educational organizations. Draft guidelines proposed by the Consortium of College and University Media Centers (CCUMC) may eventually provide guidance in this area, but they are still the subject of serious debate and dissatisfaction by a variety of parties. In their current form, the draft guidelines state that "Educators and students may not use their personally created educational multimedia programs [it is unclear to some if this even includes Web pages] over electronic networks to which access is uncontrolled without obtaining permissions for all copyrighted works incorporated in the program" (CCUMC 3). The draft guidelines further suggest that the "fair use" of photographs be limited to "no more than 5 images of an artist or photographer [in] any one multimedia program. When using photographs and illustrations from a published collective work, not more than 10% or 15 images whichever is less" (CCUMC 2). The serious constraints of these proposed guidelines seem self-evident, hence the ongoing debate.
And there remain other outstanding issues which cannot be addressed here. How can images on the Web be legitimately protected? For images used by permission, is any altering or retouching allowable and if so, how much? Where does copying stop and artistic expression begin? Must an artist rely on encryption to protect artistic endeavors that have been mounted? How can the moral rights of the author endorsed in the Berne Convention of which the United States is a signatory be protected in the Web environment? And finally, how much and what kind of use will the courts determine to be fair?
At a time when so many questions regarding the Web are left unaddressed by the existing law, the view proposed by John Perry Barlow in "The Economy of Ideas" is quite attractive. He argues, in part, that protections for digital information will be more effective if they "rely far more on ethics and technology than on law" and suggests that the Web environment might best be guided by a code not unlike the supposed code of the early American West where "Ethics were more important than rules[, u]nderstandings were preferred over laws, which were, in any event, largely unenforceable" (Barlow). Given the current vagueness of the law and the disparate views of the parties involved, I believe the best course of action is to seek permission from an image owner prior to its use or alteration and to refrain from use if this permission is not forthcoming.
Barlow, John Perry. "The Economy of Ideas." WIRED On Line. http://www.nlc bnc.ca/documents/infopol/copyright/jpbarlow.htm. 1993.
Brinson, J. Dianne, Mark F. Radcliffe. Intellectual Property Law for Multimedia Developers. http://www.dorsai.org/p-law/wong_dir/docs/wongpap1.html. 1994.
Consortium of College and University Media Centers (CCUMC). "Draft Fair Use Guidelines for Educational Multimedia". September 13, 1995.
Gasaway, Laura N., Sarah K. Wiant. Libraries and Copyright: A Guide to Copyright Law in the1990s. Washington DC: Special Libraries Association, 1994.
Graham, S. Keith. email@example.com. January 20, 1995. From the archives of the Copyright list serve of the Coalition for Networked Information available via Telnet to a.cni.org.
Gorman, Robert A. Copyright Law. Washington, DC: Federal Judicial Center, 1991.
Hayden, Bruce E. firstname.lastname@example.org. August 21, 1995. From the archives of the Copyright list serve of the Coalition for Networked Information available via Telnet to a.cni.org.
Lemley, Mark. email@example.com. January 23, 1995. ---.
Oppedahl, Carl. firstname.lastname@example.org. August 17, 1995. ---.
United States. Congress. Copyright Law of the United States of America. Title 17 of the United States Code, Circular 92. Washington DC: United States Copyright Office, 1994.