COPYRIGHT AND THE RULE OF FAIR USE

DB Roberts

Using images inevitably raises the question of copyright. We fear making mistakes and we seek guidance to avoid making them. That anxiety is reasonable: scholarship is about honesty and none of us wish to be seen as dishonest in any aspect of our vocation. But it’s also the case that we live in a litigious and opportunistic era where the execution of the rule of law may be as much about a means to an otherwise-elusive profitable end as it is about the ends of justice for justice’s sake.

Fortunately, their is a widespread acceptance in mature democracies of the idea of Fair Use. This is the idea that if the use of an image is not for personal gain (however defined), and does not detract from the needs of the image's creator, the image may be used without a breach of copyright. So we can fairly use an image if it is clearly for a social good (like teaching) rather than individual financial gain (for example), and is properly attributed (as opposed to passed off as our own work).

Our default or resting state as scholars is a great help in this respect. We are natural-born citers, and that’s some portion of the battle. We are imbued with a professional responsibility to identify the work of others when we use it; it’s the cardinal sin of scholarship to neglect the identification in full of our sources. Since using an image from the web is using someone else’s work, our ‘go-to’ mode will be to ensure the visibility of the source’s origin. But another one is much closer to home. We cite for a living; it’s part of our professional structure and identity as scholars whose job description revolves in part around ascertaining validity and veracity by ensuring source material is accessible to others. If we are citing, there is no attempt to pass off the work of others as our own – no attempt to conceal, disguise or misrepresent. The process is tangibly honest.

In this sense, copyright isn’t at all alien; it’s a familiar process we engage with routinely in the form of referencing. We already have expertise in dealing with such issues because as academics we are carefully and highly trained not to plagiarise. We routinely execute an automatic, inbuilt responsibility to ourselves and our profession to attribute the work of others to their rightful owners, and this is no different. But despite this familiarity, people quite reasonably ask about image copyright because they’re concerned with the consequences of unintentional misuse in the digitally-policed and litigious world and mentality we presently inhabit.

I’ll approach such anxieties with two approaches: prevention and cure. I’ll begin with how we can use images in ways most likely to accord with copyright regimes. These change rapidly, which is one of the reasons there is no legal guide in this blog. Keeping abreast of all developments has become much more complex and the types of copyright have expanded considerably. It wouldn’t be reasonable to expect every academic who considered using an image to be fully apprised of all this, but there is plenty we can do to maximize responsibility and minimize the likelihood of infringement.

Probably the most inclusive method – by which i mean that it searches the greatest number of images from one search engine – is Google’s Advanced Image Search. This is fortunate for us, because it searches furthest and has a built-in copyright filter, meaning we can choose the degree of protection we seek. If we set the search for Creative Commons, we have covered ourselves to some extent. The same applies if we use Flickr, whose licence states the use rights on or near each image. Subscription sites like 123RF (paid for out of School budgets rather than our pockets) are clear about non-commercial use of images. Other sites like Pixabay and Pexels allow a choice of attribution of their images. All this said, however, there is a remaining issue to consider, and that is the reliability of the copyright statement attached to an image at upload. That is, people uploading images may attribute incorrect copyright to the image, unintentionally or otherwise. Google cannot filter for mischief.

At this point, then, we have shown diligence in searching using copyright filters. We can now turn to the citation. I have yet seen no hard and fast rules that dictate exactly how we do this. I can think of 3 or 4 that range in ease, with the easiest probably being the pasting of the image’s source URL into the ‘notes view’ section of each PowerPoint slide. A second way is to allocate a final blank slide and paste the URL there with a brief description of the image it relates to. A third is to paste a small font size version of the URL onto the image itself, preferably semi-opaque (text can be made partly see-through in PowerPoint with an easy slide tool). My own preferred way, based on the fact that I publish scholarly work that includes images by others, is to do it like The Guardian does it: add a small icon of a camera and put the original URL into that, so when a mouse hovers over it the URL is visible and a click takes the viewer to the original page the image appears on. You can also embed the URL in the image, in Word and in PowerPoint. I used this method in the images in this blog: a right-click embeds the URL so the whole image is active and linked to its source.

As we can see, the process is solid, but not watertight. There is still the quite remote possibility that we might filter properly and still find ourselves using an image for which we do not have copyright. Supposing we did accidentally use an image we found using Google’s AIS engine and whose copyright provenance was misrepresented in the first instance by the original uploader, and then someone came after us. In such an instance, the first call is often a ‘take-down’ notice. The British Library uses this method. This allows for a legitimate claim to result in the removal of the offending material. It’s widely recognised that mistakes can be made, not least of all because it’s impossible to ensure the absolute veracity of the provenance of billions and billions of images, with many disseminated across multiple websites at different points in time. The ‘take-down’ practice demonstrates cooperation with legitimate challenges, rather than contest and legal confrontation. Given that an institution with the reputation of the British Library uses this policy, i feel safe adopting it for my own purposes. But what also makes me feel safe is that I’m not using these images commercially, and the main motivation for copyright challenge is when someone takes someone else’s work to profit financially from it. If we are using them for teaching, there is no commercial gain. In conjunction with the voluntary take down policy, that makes me feel safe. And if you’re still doubtful about a particular image – don’t use it.

Conclusion

In short, copyright is a technical issue that can be adapted to our needs and is no obstacle to the legal and acceptable use of images. Indeed, following procedure and using subscription items, and those sites with clear statements, is most helpful in assuring us of our legal protection. Where we do not have such clear statements, in following our normal scholarly citation processes, we automatically display no intent to conceal our use of the sources, and since our use of these sources is not for commercial gain, there is little motive, in the unlikely event of an honest mistake, for us to be concerned with legal ramifications. Follow your institution’s guidelines, and make use of this handy guide from Falmouth University. Fair Use is how we work.