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Intellectual Property and the Arts

Digital Images and the Slide Library

This is the third in a series of articles sponsored by the CAA Committee on Intellectual Property (CIP), in which a hypothetical question is posed on some aspect of rights, permissions, fair use, and related topics. We provide a short answer on the legal aspects of the question, followed by commentary from a practical perspective. This feature is intended to provide general information and does not constitute legal advice. If you have specific legal questions, please contact an intellectual-property attorney.

Q: We would like to digitize slides from our institution’s slide library for classroom presentation and student review on the Web, but we are uncertain about the copyright status of the slides. How should we proceed?

A: The practices you are describing implicate the rights of two sets of rights holders: the owner of the copyright in the object depicted on the slide (if any) and the owner of the rights in the photograph. Several copyright rights are involved. First, the digitization of the slide involves the making of a copy. Second, the presentation of the slide in the classroom is a “public display.” Third, making a copy for a Web server is a further reproduction, and, then, allowing students to view the slide remotely constitutes a public display. Of course, if you were to have all the necessary rights in both the photograph and the underlying work (or if that work is in the public domain), then there would be no copyright impediment to you going forward as planned.

As you are uncertain, however, with regard to the copyright status, you need to proceed with care. With respect to the initial digitization, the argument for a fair use would seem to be rather strong, as, absent a market in digital files, there is probably little commercial effect on any copyright owner of converting the slide to a digital file. As to the presentation in the classroom, section 110 of the Copyright Act specifically permits the display of a work (here, both the slide and the underlying work) in a face-to-face teaching setting (assuming that you are a nonprofit, educational institution). Historically, this section also permitted transmissions of works through closed-circuit television to classrooms and places devoted to instruction.

Making the slide available on the Web, however, for remote access, has not previously fallen within the ambit of section 110. The Technology, Education, and Copyright Harmonization (TEACH) Act of 2002 expanded the scope of the exemption in that section, however, to allow accredited nonprofit educational institutions to use online technology to display a work “in an amount comparable” to usage “typically” displayed during a “live class session.” There are statutory conditions, here, however. The use must be as an integral part of a “mediated instructional activity,” made under direct supervision of an instructor and in a manner “analogous” to a use that would take place in a live setting. In addition, your institution must apply technological protection measures—such as password protection to enable access to the website—so that the slides are made available only to enrolled students. And, further, your institution must use digital rights management technologies that “reasonably prevent” students from maintaining the works for longer than the period of the class session. Your institution, however, may retain the material on the server for the duration of the course.

Of course, as the CIP Commentary below suggests, even if your institution cannot meet these strict requirements, the fair-use doctrine may nonetheless be available.

CIP Commentary

Conventionally, it is incumbent upon the prospective image user to determine the copyright status of the depicted work, as well as that of the photographic image itself. However, the criteria for determining whether a given work is protected by copyright or exists in the public domain have been complicated by continually changing laws. Even if a depicted work is in the public domain, a photographic reproduction of that work may carry additional layers of copyright protection claimed by photographers, publishers, or museums. As many scholars can attest, the procedure of separating these layers and seeking requisite permissions for the sake of publication can be complex, painstaking, and financially onerous.

Consider, then, the magnitude of the problem if this standard were applied to each and every image that is used for classroom teaching. The number of images concerned would be multiplied exponentially to the point that copyright clearance would be utterly impracticable. In this regard, institutions may choose instead to analyze whether or not their uses of the images are justified by the fair-use doctrine set out in section 107 of the Copyright Act.

An argument for fair use must be weighed against the four analytical factors set out in the Act:

  1. The purpose and character of the use. Educational, nonprofit use, in and of itself, does not necessarily justify fair use, but is the firm basis from which other, supporting arguments may logically stem.
  2. The nature of the copyrighted work. This factor, largely concerning the creativity of the original work, is difficult to apply to the issue at hand. Generally, images in art slides will be highly creative, rather than informational, a fact that ordinarily would cut against a finding of fair use. However, to the extent that the display of an image in the context of teaching art history involves fact, rather than a display for expressive or creative purposes, that type of use would support a finding of fair use.
  3. The amount and substantiality of the portion used in relation to the whole work. For image users, this factor is a conundrum: nothing but the whole is relevant. On the other hand, the size and permanence of the display in a digital environment can qualify the nature of the use.
  4. The effect of the use upon the potential market or value of the copyrighted work. It is hard to gauge this factor&lmdash;which is seen to be the most significant in assessing fair use—for digitized images of slides. The effect of educational, nonprofit use on a market that has yet to take true shape is almost impossible to measure. Where a specific digitized image is readily available for sale or license, however, the argument that digitizing an image, storing it on a website, and making it available to students is a fair use probably is lessened, at least where those practices undercut the copyright owner’s market for the digital image.

Rules Of Thumb

  • Limit Web access to your institutional domain and limit access on a course-by-course basis to enrolled students and administrative staff as needed.
  • An image-viewing website should be accompanied by a prominent written warning that the material presented is strictly for educational and research purposes.
  • li>Use appropriate technological measures, including password protection, to provide access to the website, and to prevent files from being copied-and-pasted (exported or downloaded) from the site.
  • Images viewed at the time of classroom presentation are necessarily of high-resolution quality; all other viewing, however, should be limited to low-resolution versions.
  • Seek permission to digitize slides vended specifically for educational use. If a digitized image is readily available for sale or license, make use of this resource rather than digitizing independently. Periodically review the availability of such images.
  • Consult your institution’s legal counsel—but do so as a well-informed client, cognizant of fair-use parameters.

Among the many websites devoted to copyright issues, the following are of particular value to image users who want to learn more about fair use.

Kenneth D. Crews of Indiana University-Purdue University at Indianapolis and Georgia Harper of the University of Texas are leaders in the field of copyright management who have lent their opinions to CAA-sponsored forums: www.copyright.iupui.edu/highered.htm and www.utsystem.edu/OGC/IntellectualProperty/copypol2.htm.

The Visual Resources Association has established a set of guidelines for the acquisition and use of images in nonprofit, educational settings: www.vraweb.org/copyright/guidelines.html.

Allan Kohl of the Minneapolis College of Art and Design has developed a step-by-step online ‘computator’ for determining copyright status of images: www.vraweb.org/computator/welcome.html.

CIP members Robert Baron and Christine Sundt are diligent observers of copyright issues who have compiled numerous resources at their respective websites: www.studiolo.org/index01.htm and darkwing.uoregon.edu/~csundt/copyweb.

Originally published in CAA News 29, no. 1 (January 2004): 4–5.

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