Today’s lecture at SEI was on Intellectual Property Rights and Copyright issues. This can be particularly sticky for visual resource curators and art librarians who are faced with the task of making images available digitally but need to consider if these images are protected under copyright or okay to use under fair use educational exceptions.
Intellectual Property Rights protected under Title 17 US Code include: reproduction, derivatives, distribution, performance, and display. That’s pretty broad! However, there are exceptions in certain cases of fair use, library copying, public display, teaching, and formats for persons with disabilities. Also, “transformative” use is allowed as long as the new work is significantly altered from the original. Okay, that seems logical. But wait—it is not so clear-cut, as our excellent presenter Madelyn Wessel explained.
Licenses and contracts can trump fair use. Databases may be licensed to a university, but that content is not free to outside world. Privacy of persons is an issue—need to have written permission. And as several somewhat confusing court decisions have shown, fair use is a case-by-case assessment. Copyright cases are fact-specific and individual. So really, the answer to the question “what is fair use?” is almost always: it depends.
Other things to consider….
Fine arts copyright usually involves 3 parties:
1. the artist who created the work
2. the owner of the art object
3. the photographer of the art object
All three parties can be stakeholders in copyright issues.
Fair use takes into account:
1. purpose and character of use
2. nature of work—factual or creative
3. amount of original work reproduced
4. impact on the market value of original work
But, again, all of these factors are subject to interpretation on a case-by-case basis.
The gray areas of copyright law are likely to remain for a while with ping-ponging court decisions on what is considered protected and what is fair use. It’s a balancing act—preserving the rights of the artist, scholar, or writer and the right to access information and cultural art objects.
As I’m considering copyright of intellectual property, I will gladly credit Madelyn Wessel for the factual information in this blog post. And any inaccuracies are my own!