FAIR USE IN THE INTERNET ERA
Presentation by Dana Shilling, Proprietor, SILICON GALLEY
41 Mercer Street Jersey City NJ 07302 (201) 333-1173; dshilling@worldnet.att.net
I. INTRODUCTION
"Fair use" is a copyright concept: a defense against a charge of copyright infringement. Therefore, understanding the scope of fair use requires a basic understanding of copyright and its balance between authors’ rights and the rights of others, especially those who intend to use the works for educational or scholarly purposes.
In some ways, educational institutions are in a special position vis-à-vis the copyright law. They often use copyrighted works, but in special ways. To the extent that their use is non-commercial or scholarly, it is likely that they will be awarded additional latitude. Anyone can make use of the fair use defense; additional defenses are available to educational institutions and libraries.
Copyright law still reflects its origins in the days of printed books, when reproducing copyrighted matter was comparatively difficult. Copyright law deals fairly well with printed texts (although the ready availability of photocopies makes it easy to infringe and hard to police), and more awkwardly with visual art, motion pictures, and sound recordings. It stumbles badly when digital materials are involved. There is some legislation and some cases dealing with software. Although recent legislation at least attempts to come to grips with the Internet, treatment of intellectual property issues on-line is still an "infant industry."
Another potential problem is the international scope of the Internet. In the United States, copyright law is strictly a federal matter, governed by Title 17 of the United States Code (U.S.C.). The states are not allowed to make their own copyright laws, although they can handle cases dealing with contract-law matters involving copyrighted works. But United States law is not always in harmony with international law, especially the law of the European Union (EU), and there are situations in which a publication, use of a work, or design and operation of a Web site will be acceptable under U.S. law but will violate EU laws or regulations.
The No Electronic Theft Act of 1997, P.L. 105-147 was passed to reverse a court decision that refused to impose criminal copyright liability on the proprietor of a warez board, because he did not receive financial gain for posting copyrighted software on the board. The No Electronic Theft Act penalizes willful copyright infringement, especially in the electronic arena. This statute clarifies that it is not necessary that a defendant receive commercial gain for infringement to be punishable. This Act imposes criminal penalties of up to six years, depending on the number of works improperly reproduced, their value, and whether it is a first or repeat offense.
The U.S. Copyright Office has a free Listserv, NewsNet, that provides one-way dissemination (but not interactive discussion) of copyright developments. To subscribe, send a message to LISTSERV@RS8.LOC.GOV, with SUBSCRIBE USCOPYRIGHT in the body of the message.
II. COPYRIGHT LAW AND THE "BUNDLE OF RIGHTS"
A. Scope of Copyright
Copyright protects the EXPRESSION of ideas (not the ideas themselves) ideas in written, musical, visual, filmed, or similar form, whether fictional or "artistic" or factual and non-fictional.
Legal rights under copyright law are not a fixed unit. One of the hardest things for non-lawyers to understand is that copyright is really a "bundle of rights," to do or prevent various things. Each of these rights can be sold, given away, licensed, assigned, or left in a will. Furthermore, each of the rights can be transferred separately. The practical result is that someone who wants to use or adapt a copyrighted work may have to deal with several parties—and may deal with someone who is mistaken, or lies about, the rights possessed.
There are five major components in the "bundle of rights":
That is, the person who owns the entire copyright can control these aspects of the copyrighted work; a person who owns one of the rights can control only that particular aspect.
Copyright law deals with "works of authorship" that are fixed in tangible form. 17 USC §102 gives a non-exclusive list of works of authorship that can be copyrighted:
The holder of the copyright begins by having the exclusive use to the copyrighted material, although some or all of the rights may be transferred. The holder’s exclusive rights include reproducing the works in any manner, publicly performing or displaying the work, and preparing derivative works. A derivative work is a separate work (that will probably be entitled to be copyrighted itself) that adapts, recasts, or transforms an existing work. Translations, annotations, and editorial revisions are derivative works. People who are not sophisticated in copyright law often fail to understand the concept of a derivative works. They think that, for instance, it is acceptable to use existing characters or images, then alter them (e.g., by Photoshop manipulation of an image).
Similarity between two works is not enough to prove infringement. If the works are not identical, then the resemblance between them may be innocent; independent exploration of current ideas and themes; or a "scene a faire" (obligatory scene—element that is typical of an entire genre). For instance, McGraw-Hill v. Worth Publishers, 335 F.2d 415 (S.D.N.Y. 1971) holds that, unless direct copying occurred, the similarities between two economics textbooks should be attributed to a similar need to explain set economic doctrines.
The first sale doctrine is what makes it possible for a library to lend copyrighted books, or a video store to rent copyrighted videocassettes without violating the Copyright Act—or, indeed, paying royalties. However, the Computer Software Rental Amendments Act of 1990, P.L. 101-650, enacted at 17 USC §109(b), creates an exception. Nonprofit libraries and educational institutions can lend and lease copies of software and phonorecords, but for-profit businesses are not permitted to do so. Although revisions were proposed to the Uniform Commercial Code (an influential compilation of laws dealing with business transactions) that WOULD have allowed leasing software, it was decided in Spring, 1999 NOT to adopt the proposed Article 2B.
European law does provide for a generalized "droit morale" (right of a creator to prevent distortion of his or her work, and to share in appreciation in its value). This concept has not been adopted in full form in U.S. law, but the Visual Artists Rights Act extends limited protection to works for visual art (other than works made for hire). The artist’s "right of attribution" allows the artist either to claim authorship or have his or her name removed from work he or she did not create or that has been mutilated or distorted. The "right of integrity" permits the artist to permit intentional distortions of original works in a manner prejudicial to the artist.
B. What Can be Copyrighted?
In addition to written works of prose, musical compositions, visual works of art, etc., a compilation of literary works can also be copyrighted, given minimal originality in the selection and arrangement of the items in the compilation. Copyright to each contribution to the collective work initially belongs to the author of the contribution. The holder of the copyright in the collective work is presumed to have the right to publish the contribution in that particular collective work, unless greater rights have been transferred.
Under U.S. law, the "sweat of the brow" theory does not apply. That is, even if a good deal of effort or expense is needed to compile a database or other collection of factual information, a mere compilation of facts is probably entitled to minimal if any copyright protection. For instance, a telephone book is not copyrightable, so a competitor’s use of the listings to prepare its own directory was held not to constitute infringement.
Government publications may not be copyrighted, but the government can hold and receive copyrights transferred by assignments. This principle opens up many opportunities for the educational institution, because a significant amount of valuable material is produced and published by government agencies, and can be freely used and reproduced without permission or royalties.
III. RECENT STATUTES
A. Copyright Term
Copyright protection doesn’t last forever. Once the term expires, the work enters the public domain, and can be used or adapted by anyone without penalty. How long does copyright protection last? That’s not a simple question to answer.
Before the 1978 Copyright Act, the initial copyright term was 28 years, with one 28-year extension available. Thus, under prior law, "renewal copyright" was an important concept (one which still has some validity for older works that have not yet reverted to the public domain). The ’78 Act provides that, for works created after 1/1/78, the statutory term of protection is the life of the author plus 50 years. (This is also the term provided by the Berne Convention, an international copyright treaty signed by most developed countries.)
For works done for hire, or for anonymous or pseudonymous works, the ’78 Act term of copyright protection is 75 years from the time of publication, or 100 years from creation, whichever is shorter. For works already under copyright when the ’78 Act took effect, the initial term would be 28 years from first publication, plus a renewal term of 47 years; renewal was required prior to expiration of the 28-year initial term. However, the ’78 Act did not restore copyright protection to works that had fallen into the public domain.
As a result of 1998’s Sonny Bono Copyright Term Extension Act, P.L. 105-209, both the initial and renewal term of copyright have been extended by 20 years, to conform to the greater scope of protection permitted under European Union law. The basic term of copyright protection is now the life of the author plus 70 years (even for unpublished works, anonymous or pseudonymous works, and works for hire, which had different terms than ordinary works of authorship under prior law).
There is an academic fair use exception for reproduction, display, and performance of works in the last 20 years of their copyright term (i.e., the newly-added extension) by nonprofit educational institutions, libraries, and archives, if it is impossible to obtain the works commercially at a reasonable price, if the purpose is research, scholarship, or preservation of the materials.
But educational institutions can’t do this if the owner of the copyright has filed a notice with the Copyright Office indicating that the work is available through normal commercial channels or that a copy can be obtained at a reasonable price. The procedure for filing such notice was published in the Federal Register on December 30, 1998: 64 FR 71785-71788, also available at http://lcweb.loc.gov/copyright/fedreg/nlatxt.html. See http://lcweb.loc.gov/copyright/cpypub/nla.html for an explanatory press release from the U.S. Copyright Office.
B. Digital Millennium Copyright Act
The Digital Millennium Copyright Act (DMCA; P.L. 105-304 (10/28/98)) is another late-1998 copyright statute. The U.S. Copyright Office has published a detailed plain English guide to the statute, dated December 1998. It implements two copyright treaties (the World Intellectual Property Organization [WIPO] Copyright Treaty and the Performances and Phonograms Treaty) and updates the Berne Convention (international law of copyright protection) for new technology. A phonogram is a sound recording, and the corresponding treaty deals with protection of sound recordings distributed over computer networks in digital form.
Because of DMCA, a newly added Chapter 12 of the Copyright Act provides for digital "watermarking" of copyrighted material, by affixing electronic files containing information about the proprietorship of the material. It is a crime to remove or alter the watermarking information without permission, or to sell technology for circumventing the watermarking process. The statute refers to Copyright Management Information, or CMI. CMI means data that identifies at least the work, its author, and the owner of the copyright. Sometimes additional information can be included, such as who wrote, directed, or performed the work and the terms and conditions under which the work can be used by others.
Certain exceptions are allowed, such as security testing and reverse engineering; broadcasters can make short-term copies (for instance, creating a CD with multiple music selections, for convenience in on-line broadcasting). There is also an exception for non-profit educational institutions, archives, and libraries if they circumvent the access measures only for the purpose of deciding whether they want to acquire rights to the work. These non-profit institutions are exempt from having to pay damages if they circumvent access measures. The DMCA’s criminal penalties do not apply to non-profit educational institutions, libraries, or archives either.
As the Copyright Office memo explains, two kinds of technological measures are recognized: one to prevent unauthorized access to a copyrighted work, the other to prevent unauthorized copying. (In this context, copying includes public display and performance as well as making hard copies of online content.) The ban on circumventing watermarking devices applies only to circumventing an access device, because the fair use defense may justify bypassing a device to prevent copying.
The DMCA also absolves Internet Service Providers and other on-line "broadcasters" of liability for direct, contributory, or vicarious copyright infringement in situations in which they serve as conduit for infringement by routing, caching, storing, or linking copyrighted material without consent of the proprietor, but have no editorial involvement with the material. To qualify under this safe harbor, the service provider must create, publicize, and enforce a policy of removing material from the service as soon as they become aware of infringement, and must designate an agent to whom infringements can be reported.
DMCA §512(e) provides that an educational institution is not liable for infringement committed by a faculty member or graduate student employed by the institution if:
Other DMCA provisions deal with compulsory licensing of music for Internet transmission of music, with accompanying royalty provisions, and distance education and academic fair use.
DMCA §403 establishes a federal policy of encouraging digital-based distance learning (including courses transmitted over interactive digital networks). The Copyright Office was directed to consult with educational institutions, libraries, archives, and copyright owners to determine the best way to balance their competing needs. On December 23, the Copyright Office announced a public hearing and request for comments on important distance-learning issues (63 Federal Register 71167-71169), e.g.,
According to Merrill Lynch, 710,000 students took distributed learning courses in 1998. About two and a quarter million students are expected to take distance learning courses in 2002 (compounded annual growth rate of a stunning 33%). In 1998, 62% of four-year and 58% of two-year colleges offered distance learning courses, percentages that are expected to increase to 90% and 84% respectively by 2002.
About 92% of college students have access to a PC at school, and 55% own their own computers. In 1998:
Distance learning allows students to "attend" prestigious institutions that are outside their geographic reach. It allows working people to get work-related or purely personal knowledge without having to leave their jobs or compromise their work and family schedules. Almost half of post-high-school students (about 6.1 million people) are employed adults. For many of them, geographic, time, and financial constraints make it impossible to attend conventional classes, whereas distance learning makes it possible for them to reconcile the student role with the worker and family role.
The Copyright Office is researching how distance learning is actually practiced (e.g., nature of sponsoring institutions, students, technologies, and curricula); who makes copies of distance learning materials, and why; whether restrictions are imposed on the access, use, and modification of electronic course materials; licensing practices in use in distance learning; employment of public domain materials and the fair use defense.
On May 25, 1999, the Register of Copyrights posted its massive, 348-page document, "Report on Copyright and Digital Distance Education." See http://www.loc.gov/copyright/cpypub/de_rprt.pdf, especially Part II (current licensing practices for distance learning) and Part IV (applicability of current copyright law in the distance learning context).
The report identifies some current problems in licensing content for digital distance education:
However, the report predicts that, as digital repurposing of works becomes more common, better licensing bureaus will evolve, and copyright owners will feel more secure in making materials available for digital re-use. According to the report, copyright owners who once routinely denied all requests to digitize and license works are now amenable to licensing, as long as their terms are met.
As the report says, there is no standard or typical digital distance education course, although e-mail, threaded discussion, chat, electronic whiteboarding, interactive CD- and DVD-ROMs, and links to Web sites are common tools. Access to the materials can be limited to enrolled students by, e.g., requiring passwords; screening IP addresses and domain names; using firewalls; encrypting the material; or distributing it on CD-ROM only to authorized users.
If the concern is redistribution (i.e., one person registering and paying for the course, but allowing multiple parties to use the materials), then "enveloping" technology can be used to limit the re-use of the material. Or, the content can be distributed as streaming video (which is difficult or impossible to copy). If a digital watermark is added, as prescribed by the DMCA, spiders can be used to detect and punish unauthorized use of digital materials.
According to this report, digital distance education courses typically use three kinds of licenses: site licenses, and transactional licenses for either digital or analog use. Some licensors waive their fees for educational institutions, while others have a lower fee schedule for such institutions.
The analog transactional license covers coursepacks or other paper copies; any license fee imposed is usually paid on a per-student basis. Transactional digital licenses allow a particular use of a digitized product, or permit the educator to digitize analog materials and then reproduce, distribute, display, or perform the digitized content, with a fee based on the scope of use.
A site license is a comprehensive license allowing all uses of copyrighted works, by a defined user or group of users, for a set length of time. For instance, a database of journal articles might be made accessible via site license.
A "blanket" license, usually administered by a rights exchange or copyright clearance organization, imposes a single annual fee for use of works owned by many copyright proprietors who have delegated administration to such a "collective organization." The usefulness of a blanket license depends on how much of the needed material can be brought under that license, and how much has to be separately licensed. Site licenses can either be limited to a campus or other physical site, or can permit use at other locations (e.g., distance learners’ offices).
The Register of Copyrights recommends some changes in the federal Copyright Act:
IV. FAIR USE
There are various situations in which undoubted use of copyrighted materials, without the consent of the copyright proprietor, will be permitted. The "fair use" exception is set out in 17 USC §107. For instance, a limited amount of material can be quoted, e.g., in a scholarly article or book review, in order to further the argument of the article or give review readers a chance to form their own opinion of the work.
Several organizations have developed influential guidelines on fair use of copyright materials in digital distance learning, including the Consortium of College and University Media Centers (CCUMC)/Agency for Instructional Technology, and the Conference on Fair use (CONFU). Although these guidelines do not have the status of laws or official agency regulations, they can be helpful in guiding your standards and practices.
Reproduction for criticism, comment, news reporting, teaching, scholarship, or research is deemed to be permissible fair use. Unauthorized verbatim quotations are permissible in the political context, to prevent distortion of the speaker’s viewpoint: Maxtone-Graham v. Burtchaell, 803 F.2d 1253 (2nd Cir. 1986). But not all scholarly use is fair use. Salinger v. Random House, 811 F.2d 90 (2nd Cir. 1987) finds that the use of copyrighted letters in a biography was not fair use, even though the author’s purpose was scholarly, because J.D. Salinger’s expression, and not just the facts conveyed in the letters, was copied.
A 1981 opinion of the Kansas Attorney General (see CCH Copyright Reporter ¶25,331) says that a state Department of Education (i.e., a governmental educational organization) infringes the copyright in a musical composition by distributing copies of the sheet music to judges of music performance contests. Such use does not qualify as "criticism" of the musical work, because the performances of contestants, not the underlying musical work, are being judged. According to Sundeman v. Seajay Society Inc., CCH Copyright Reporter ¶27,765 (4th Cir. 4/23/98), it was legitimate for a not-for-profit organization to copy an entire manuscript for use in preparing a critical review in a scholarly paper, and in copying part of the manuscript to submit it for authentication, since the actual text of the manuscript was not broadly distributed to the public or even to students.
Copies, or even multiple copies, can lawfully be made of prose works and sound recordings, for academic use. Since §107 was amended in 1992, the same analysis applies whether the work from which the copies were made is published or unpublished.
The factors involved in distinguishing fair use from infringement include:
A 1961 Report of the Register of Copyrights lists some examples of permissible fair use. (Since then, some of these examples have been built into the Copyright Act):
However, the amount of "taking" of the copyrighted work must not be excessive relative to the purpose of the alleged fair-use work. Although imaginative works get more protection than strictly factual ones, it is still not allowed to use more of a non-fiction work than is needed to convey the facts.
The fair use defense won’t apply if the copying impairs the market for the original product and authorized derivative works
. This is the most important element.For instance, a fair use defense is not available for re-creating a child psychology textbook in the form of a chapter-by-chapter paraphrase of an existing text: Meredith Corp. v. Harper & Row, 378 F.Supp. 686 (S.D.N.Y. 1974). Even educational use would not justify taking half the content of a pamphlet about cake decorating from a copyrighted book on the same subject—and even though the material that was copied was strictly factual: Marcus v. Rowley, 695 F.2d 1171 (9th Cir. 1983).
Several cases have held that it is not fair use to copy questions from a standardized test for use in a commercial test preparation book, even if an argument is made that the purpose of the book is to prepare students for the test.
B. Course Packs
It has now been clearly established (see, e.g., Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991), where the court held that copying large portions of textbooks adversely affected sales of the textbooks, as well permission fees that constitute a significant income source for textbook authors) that it is unlawful to make unauthorized copies of copyrighted articles about a particular topic and assemble and sell the copies as "course packs." It is no defense to claim that the course pack is a copyrightable compilation, because there is no authorization to use the copyrighted materials.
However, a teacher or institution that wants the convenience of distributing only selected articles from multiple sources can easily achieve that objective by working with one of several reputable copyright clearance firms that will handle the licensing process and supervise remittance of the necessary fees.
C. Library Reproduction
Since the 1976 Copyright Act, U.S. law has made special provision for libraries and archives that are open to the public, or to all researchers in an academic field. 17 USC §108 allows such libraries to make copies of works in their collections, as long as:
If the user wants a copy of only part of the work, the library has the right to either copy it from its own collection or get a copy for the user from another library’s collection. The user can get a copy of an entire work, or a substantial part of a work, but only based on the library’s determination that the work is out of print and the user can’t get a copy at a fair price.
This provision is limited to on-demand, one-copy-at-a-time reproduction, and doesn’t authorize large-scale reproduction of multiple copies or creation of an inventory of copies to be distributed to users.
However, a library has the right to make one, two, or three copies of UNPUBLISHED works in the collection, in order to preserve the works or deposit the works with another research library.
Up to three copies of published works can be made for archival preservation of lost, stolen, damaged, or deteriorating materials, but only if replacements cannot be purchased commercially at a fair price. Works in obsolete formats (i.e., the viewing/listening device for the format is no longer commercially available) can be converted into currently usable formats.
D. Classroom Use
Copyright Act §110 allows performances and displays of copyrighted materials for classroom teaching and educational broadcasting. Any kind of copyrighted material can be performed and displayed in a "classroom" (i.e., not an auditorium unless a class is meeting there), in conjunction with teaching (i.e., not recreational) activities. This exemption is not available if the material is transmitted from outside the classroom, rather than projected in it, or if the actual copy being used was bootlegged rather than obtained legitimately.
Section 110 carves out a narrow exemption that permits broadcasting of nondramatic literary and musical works on an educational TV or radio station in connection with instructional activities of a public or nonprofit educational institution. A typical example would be a lecture, "how-to" production, or documentary. (The copyright owner still controls the transmission of plays and other dramatic works, and the §110 exemption does not extend to movies or other audiovisual works.)
The exemption extends to for-credit college courses broadcast on television, even though there is no way to prevent members of the public from viewing them. Presumably, the same would be true of an Internet study course or Webcast, although I have not found explicit legal authority for this point.
There is no copyright infringement if educational institutions videotape television programs off the air for educational use without getting permission or a license—as long as the copies are destroyed within 45 days (or unless the institution has gotten permission to archive the tapes). Large-scale use and distribution will still be an infringement, if the institution copies and disseminates more material than is strictly required for review or criticism: Encyclopedia Brittanica Educational Corp. v. Crooks, 542 F.Supp. 1156 (W.D.N.Y. 1982).
Copyright Office Circular 21, Reproduction of Copyrighted Works by Educators and Librarians (revised as of 9/95) sets some parameters for permissible academic fair use. A SINGLE copy of:
can be made by or for a teacher for use in teaching, preparing for a class, or scholarly research. Multiple copies can permissibly be made for classroom use (but only one copy per student), as long as each copy carries a copyright notice, and the copying satisfies the three tests of brevity, spontaneity, and cumulative effect.
The "brevity" test limits the copying to ONE chart, graph, etc. per book or issue of a periodical; a complete poem under 250 words or a 250-word excerpt of a longer poem; a complete prose work under 2,500 words or an excerpt of 500-1000 words (or 10% of the entire work, if it is less). An illustrated short "special work" that is less than 2,500 words overall may not be reproduced as a whole.
The "spontaneity" test means that the individual teacher decides to use the work (i.e., it is not assigned by institutional policy), and maximum teaching effectiveness requires use before permission could be obtained.
The "cumulative effect" test means that the material is used for only one course in the school. In any one class term, multiple copies can be made of only nine works. Furthermore, only one short piece from any one author, or any two excerpts from the same author can be copied, and only three works can be taken from the same collective work or volume of a periodical. (However, additional copying from current news sources may be justified.)
The Circular makes it clear that this type of fair-use copying cannot be used as a substitute for textbooks, workbooks, standardized tests, or anthologies. Teachers are not permitted to take advantage of these guidelines for the same works in successive years, and if school administration prescribes the use of materials, they must be ordinary publications or authorized reprints. Nor can institutions use minimal fair-use copying as a profit center: students may not be charged more than the actual cost of making the copies.
V. TECHNOLOGY AND COPYRIGHT
A. Introduction
Although the holders of copyrights in films claimed that the sale of videocassette recorders to the public constituted contributory infringement, the Supreme Court squelched that argument in Sony v. Universal City Studios, 464 U.S. 417 (1984). To the Supreme Court, VCRs were used primarily for "time-shifting" (recording a broadcast program for viewing at a more convenient time), thus increasing the viewing audience for programs that were intended to be viewed by the public at no explicit charge. The Court did not believe that viewing rented videocassettes impaired the commercial value of film copyrights or created likelihood of future harm.
The ideas themselves in a computer program are not copyrightable, but the program itself can be protected as a literary work if it embodies an expression of ideas. Under 1980 amendments to 17 USC §101, a computer program can be copyrighted if it’s a set of statements or instructions enabling a computer to perform the operations intended by the user.
Creating an archival copy or limited modified copy of the program can be fair use. But loading copyrighted software into a computer’s random access memory (RAM) is a copyright infringement, in that it creates a tangible, fixed unauthorized copy of the program. If a software licensee allows an authorized third party to use a licensed, copyrighted computer program, the copyright holder is entitled to bring state law breach of copyright claims; the issues involved are not limited to, or preempted by, federal copyright law.
It’s only fair for me to acknowledge my debt to F. Lawrence Street’s Law of the Internet, (Lexis Law Publishing 1998), especially the Copyright chapter updated by Kristen McGuffey. As this book shows, copyright law is just beginning to come to grips with software, and has little to say about the Internet. It does seem clear that, because e-mail and Web pages that are transmitted over the Internet are stored in RAM and on users’ hard disks, "copying" occurs in the course of the transmission. In other words, it’s no defense to an infringement charge to say that copyrighted material was not "copied" by being e-mailed or included in a Web page, although the fair use defense might be available.
According to Law of the Internet, downloading a Web page requires copying on servers and the user’s computer, therefore "fixation in a tangible medium" has occurred, and there is no barrier to copyrighting material that appears only on the Web. Several of the "bundle of rights" are involved. For instance, materials might be "displayed" or "publicly performed" over the Internet, and alteration to materials may infringe the right to control derivative works.
Although it might be reasonable to assume that posting material to a non-passworded Web site implies a license to download the material, it is not clear whether there is an implied license for the user to save the material to disk or print it out, and it is probably not true that there is an implied license to forward the material or create derivative works from it. The most practical thing to do is to spell out, by TOS (preferably with reminders on every screen display), what use CAN be made of the material. Passwording, watermarking, and image locking (preventing alteration or copying) are valuable practical protective measures.
B. Linking and Framing
Although the question is not absolutely resolved, it seems accurate to say that the entire culture of the Web revolves around free availability of hyperlinks from one site to another. If this is undesirable to the party maintaining the Web page, it makes sense to encrypt, use password protection, or place the material on an Intranet or Extranet rather than the public Internet. Limitations on re-use can also be included in the site’s Terms of Service (TOS).
Technology is evolving for "watermarking" copyrighted materials, so its re-use on the Web can be tracked, and for permitting images to be viewed but not copied. (Absent such technology, it’s easy to "cut and paste" such material into another document or Web page by using the browser’s "View Source" command.)
However, linking makes it clear that the viewer has left one site and is now viewing another site, very likely under different sponsorship. In contrast, "framing" is the practice of placing material from one site within the "frame" of another site, making it appear that the material belongs to the second site. Framing raises issues of unfair competition and fraud as well as potential copyright infringement, because advertisers who put an ad on a particular site generally pay on the basis of viewership or action taken in response to the ad, and framing confuses the relationship between sites and advertisements. The advertisers at the second site may get a windfall if the material from the first site is especially interesting to viewers.
The defendant’s motion to dismiss was granted in Bernstein v. J.C. Penney, CCH Copyright Reporter ¶27,824 (C.D. Cal. 9/29/98). The plaintiff was a photographer who said that the copyright of two of his photographs of Elizabeth Taylor (taken to promote her perfumes) was infringed when the photographs appeared on a Swedish movie fan site via links from sites maintained by the perfume company and J.C. Penney (which had a legitimate right to promote the perfumes). Although the opinion does not contain detailed reasoning, it seems to say that sites that legitimately use copyrighted materials are not liable when links are established to sites that are not entitled to use the material.
C. Images and Alteration
Although in general physicians have an obligation to preserve confidentiality of information imparted by patients for the purpose of medical treatment, this is usually interpreted in terms of spoken disclosures ("I’m having an affair" "I do a little cocaine on weekends"), not analog or digitized photographic images. A physician’s disclosure of verbal information confided for treatment purposes can constitute invasion of privacy.
For legal purposes, invasion of privacy falls into four categories:
Using or transmitting digital medical images probably would not fall into any of these categories, in that the images are not readily identifiable with a particular person, and probably do not carry a person’s name. Defamation requires an implication of some form of crime, ethical violation, or wrongdoing. With the possible exception of sexually transmitted diseases, there is no defamatory potential in medical imaging. Furthermore, truth is a defense to a defamation charge, so use of accurate diagnostic images would presumably qualify for such a defense.
Although there are several federal and state statutes and regulations covering telemedicine, these enactments have not really covered the privacy issue. It is possible that hackers will maliciously intercept telemedicine communications, or even alter images—but it is not likely that telemedicine sites will be particularly attractive.
The physical medical record, including images, is deemed to belong to the health care provider. But the INFORMATION in the record is the property of the patient, who has the right to copy the information and direct who is entitled to use it. Estate of Berthiaume v. Pratt, 365 A.2d 792 (Maine 1976) finds it was an invasion of privacy for a surgeon to photograph a patient at various stages of treatment without the patient’s consent, even though the photographs were taken for non-commercial, scientific purposes.
To be safe, it makes sense to ask patients to sign a release permitting use of their photographs/images to be used for medical education, scientific knowledge, and/or research as long as the images are not labeled by name or otherwise identifiable. The release should also grant the right to publish and republish the images in medical journals, books or articles, and the right to modify or retouch the images.
Presumably, images used in telemedicine might be enhanced or otherwise manipulated digitally to improve their usefulness in teaching, but not in order to distort them. Two recent cases on related issues shed some light on the difficult question of the copyright implications of Photoshop or other alteration of digital images.
Hoffman v. Capital Cities/ABC Inc. CCH Copyright Reporter ¶27,872 (C.D. Cal. 1/22/99) holds that an altered photographic image of actor Dustin Hoffman violates his rights of privacy and publicity under California state law. The most interesting thing about this case, for our purposes, is the holding that federal copyright law did not preempt the state-law claims, because the digitally altered image (Mr. Hoffman’s head on the body of a model wearing an evening gown, referring to Mr. Hoffman’s role in "Tootsie") was not considered a work of authorship.
For technical reasons, the case of Bridgeman Art Library Ltd. v. Corel Corp., CCH Copyright Reporter ¶27,859 (S.D.N.Y. 11/13/98) was decided under British law, so the question was whether photographic transparencies of public domain works of art (taken with consent of the owners of the artworks) were copyrightable. The court said that they were not, because British law defines copyrightable subject matter as "original literary, dramatic, musical or artistic work." According to the Southern District of New York’s opinion, "photographic images of actual people, places and events may be as creative and deserving of protection as purely fanciful creations. But one need not deny the creativity inherent in the art of photography to recognize that a photograph which is no more than a copy of the work of another as exact science and technology permit lacks originality." Therefore, if this case becomes influential, medical imaging may be placed in a class with somewhat lowered degree of copyright protection.
Although European law recognizes the creator’s moral right to prevent alteration of artwork, and a modified version of this concept is recognized in §106A of the United States Copyright Act, the moral right provision is limited to single copies or editions under 200 of paintings, drawings, prints, and sculptures. Audiovisual works, databases, electronic publications, charts, technical drawings, diagrams, and models are specifically excluded. Therefore, this provision would not prevent alteration of medical images on the Internet.
D. Copyrighting a Database
Protection of databases is one of the areas in which U.S. and EU law differ. The EU extends greater protection to information compilations, including computer databases. This legal disparity is likely to create significant difficulties with respect to databases that can be accessed over the Internet.
In the United States, a database may qualify as a copyrightable "literary work" or as a compilation, if the selection and arrangement of data adds up to an original work of authorship and not just mechanical collection and arrangement of material.
The Copyright Office’s Circular 65, "Copyright Registration for Automated Databases," gives the government perspective on database protection. Circular 65 quotes the Copyright Act’s definition of "publication" (distributing copies or phonorecords of a work to the public by sale, rental, lease, or lending) but says "it is unclear whether on-line availability with or without printers for the user constitutes publication."
There are two ways to register a database: a single basic registration for an entire unpublished database, or for the status of a published database as of a particular date; and a group registration for the database and its revisions as they occur. (It is also permissible to register just the updates and revisions to a database made over a period of up to three months.)
Circular 65 also explains how to satisfy the deposit requirements of the copyright law for a database; in essence, sample records must be submitted. If the deposit is encoded rather than natural-language, a key or explanation of the code must be included so the copyright examiner can see if copyrightable material is present.