On Scholarly Fair Use and Infringement on the World Wide Web
A technical solution to posting copyrighted images on the Web?

Posted: 7/2/98

---------------------- Information from the mail header -----------------------
Sender:       Visual Resources Association < VRA-L@UAFSYSB.UARK.EDU >
Poster:       "Robert A. Baron" <>
Subject:      Re: AHW & Copyright issues ETC (as posted)
Subject:      Scholarly Fair Use and Infringement
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At 08:55 PM 6/29/98 -0400, Alec J. Hartill wrote:

>Robert A. Baron wrote:
>Alec said:
>> >Questions raised and unanswered are
>> >#1 What is the "high resolution" of the images going to be on the Web?
>> >#2 Isn't placing images on the Web considered as publishing anymore?
>> >#3 If one is going to label the images as "scholarly work" does this
>> >mean that one doesn't mind anyone copying them and using them for ANY
>> >purpose, possibly with NO acknowledgements, NO fees for the creator of
>> >these images?
>> >It's mind boggling !

>> I, for one, see no inherent conflict between wanting to give images away on
>> the web and wanting to sell them for designated uses. The assumption of web
>> placement (not always correct, though) is that the audience has
>> intellectual interests in their viewing, and that the resolution is low and
>> not of commercial use.

>But the fact is that the message reads <of high resolution>, which in my
>book means anything over 1000 x 900 pixels approx.!

>I think that Robert poses a good question hidden perhaps in rhetoric, in
>asking how one goes about protecting owners' rights and at the same time
>publishes images at high res on a <scholarly> web site, especially from
>whence they are liable to be "lifted" and incorporated in another's web
>pages.  This practice is already fairly common amongst academics who
>maintain/develop web sites for teaching by extension from their own
>campuses, all under the banner of Fair Use practices; but really now, is
>it fair, is it moral and legal under US or International statutes?

With due respect to Maryly (who posted on this topic on museum-l) and to
Alec (whom I'm answering), I believe that the problem is not solvable by
relying on technical standards. What we are faced with is a philosophical
and commercial dilemma which, in my view, works out as follows:
Historically, we think of the practice of the humanities as something apart
from the world of commerce. Perhaps it is just a conceit of our
civilization that humanistic studies in their essence are for the general
benefit of mankind and are non-commercial -- even when they have commercial
linkages -- as in publishing. If it is a conceit, it is one of long
standing and has served to provide shape to our institutions of learning
and to our systems of values.

As humanists (I know -- someone will point out this is mere intellectual
colonialism.) we like to think that the entire world and all human
artifacts are ours to consider, to investigate and to discuss -- with a
broad exemption from the responsibilities and obligations imposed by
commercial transactions -- an exemption that lives as long as we don't
cross over the boundary between intellect and commerce. (I grant -- lots of
assumptions here.) When we study poetry, for instance, although poets
publish and sell their works to magazines and are paid to give readings of
their works, it is considered entirely within the bounds of humanistic
privilege to quote and to read their works to a class, to present them in
lectures, and to write about them in journal articles. I can buy or borrow
a book of poetry and read it aloud to a private gathering.

There will be those who find this next point quite outrageous, but among
humanists it is assumed that the commercial motive is not the sole reason
why people create. I know -- the law of copyright presumes otherwise -- but
part of the creative impulse -- historically anyway -- is to affect and
move people, to impose one's own view on a person or on a civilization, to
reveal the hidden, to understand ourselves better.  For these reasons the
use of created objects for purposes of teaching and advancement is condoned
by society and codified (roughly) as a "fair use" by the law.  There is no
escaping it. Those things considered important and influential are fair
game for those who elect to discuss them.  It is a social contract of sorts
-- a contract between the realm of intellect and the halls of commerce.
Notoriety is a product of discussion; fair use is an allowance bartered by
commerce to obtain the benefits of notoriety.

If you accept the premise, then you believe in the principles this contract
holds. But if you look under a microscope so that each transaction is
inspected closely, today, none of these philosophies strictly apply. The
assumptions are rather easy to deconstruct. Scholarship is economic in its
basis and commerce, and what commerce creates is just as fundamental to
society's purpose (if not more) than the ruminations of the scholarly
industry.  Cynical or true? Further, rule of egalitarian ownership of
property of the intellect is being assaulted from many sides. Each
"stake-holder" be it creator or cultural or spiritual heir has claimed a
piece of the antarctic pie of human creativity. While mostly we stand by
the old assumptions, it is questionable that the claim-stakers will abandon
their proprietary claims for the good of society as a whole. When we look
at how these populations have been mistreated and misunderstood by society,
it is difficult not to want to award them reparations in the form of their
own property. The question is this: as far as intellectual property is
concerned, is it necessary to take away from Peter to pay Paul?

Still, when a scholar or teacher or commentator or news gatherer uses a
work that may have commercial significance in other arenas, we accept this
use as valid and protect that right by codifying "fair use."  But this is a
landscape filled with greys. When a news organization creates a documentary
about an historical subject -- the Civil War, for instance -- and
distributes it to television where they make a profit from sponsors, is the
purpose overridingly educational or is it commercial? The answer is:
commercial, but so is the presentation of today's news. The only exception
I can think of right off is the kind of work that is aimed directly at
pedagogical users -- such as Alec's trading on images he takes and sells to
educational institutions or Reuters and other agencies that target the news
industry. But once sold to a newspaper, is it an infringement for an
historian to reproduce that Reuters story in an historical study? -- or is
it fair use?   Once sold for teaching, is it an infringement to reproduce
an image created by a slide vendor in a scholarly article? -- or is that,
too, a fair use?  Why is it that we allow that the news-story can be
reproduced but generally agree that the image cannot? How long will the
former liberty last?

We think of copyright infringement occurring when someone takes the "heart"
of a work and presents it as a whole, and uses it in such a manner so that
no one needs to acquire the work itself. We don't reproduce copyrighted
novels for use by a class, because to do so would be to take the work in
its entirety. Is the use of the Reuters story allowed because its original
purpose was ephemeral, for the moment? Do we disallow the subsequent use of
Alec's photos because their purpose is eternal (or as close as one can
reasonably get to everlasting)? These ideas are not part of any copyright
code with which I am familiar.

Images are more complex than text. When we show a slide by Picasso on the
screen we may claim fair use, but even were we not to make that claim, when
we show that image can one truly say that we have taken the heart of the
work? The ephemerally viewed image is quite distinct and smaller than the
original. If fact, it lacks just about everything that makes it into
something unique and "artistic." Further, when I take a photograph of a
famous architectural monument and show that to a class, where does the
"heart" of that work lie?  Is it in the photograph solely, or does the
photo just adapt and borrow from the underlying monument -- as things in
our tangible world are copies of a Platonic essence. As photographers of
the fine arts, in spite of the ultimate impossibility of the task, we
attempt to impose as little of our own aesthetic into the final image and
to render an image that shows the subject as clearly and unencumbered as
possible. (Of course, there are those who do exactly the reverse.) But what
work are we taking the "heart" of? Is it the artist's or the
photographer's. Is the photographer just another claim holder of the
world's intellectual property?

When a scholar, using the Internet as his new means of distributing ideas,
copies an image which is copyrighted, and uses it, transforms it, into an
illustration of his own point of view, is he taking the heart of the work
from the maker of the slide?  Or is he passing through the slide, trying to
grasp the essence upon which the image is based? In some studies we focus
on the art, in other studies we try to resolve questions concerning the
photography of the art.

In its ancient desire to conquer and lay claim to all of human knowledge,
the scholar industry looks at every information technology as a means of
establishing its "manifest destiny." Accordingly it should not be
surprising to find that the newest generation of professors profess with
whatever technical means are at their disposal -- now the Internet. In the
old days, when the world's knowledge was written by hand (in manuscripts)
and held in a few tightly controlled repositories, opportunities to claim
conflicting ownership of intellectual properties were nil. When knowledge
was passed through oral tradition, as it still is in many places (even
here), the fact of ownership was so vital that to claim proprietary
interest would surely be self-destructive. Consider the world of party
jokes. When the printed book permitted the same materials to reach a wide
audience from different sources, the notion of infringement (as counterfeit
editions) was invented and protection to publishers (not authors, at first)
in the form of limited monopolies were granted.  Finally, with the
invention of the Internet where the distinctions between publisher and
reader seems to be dissolving, where every reader can be his own publisher,
the crisis of ownership of intellectual property has come upon us. When we
are drowning in a torrent of images, who do we say owns the raindrops?

The image I use to define the intellectual property dilemma of today is one
taken from our old books of logic. Two circles, one of ownership of
intellectual property, and the other that guarantees free use of
intellectual property, are first apart -- independently owning their own
spheres and realms of information -- then slowly merge and overlap so the
common "Boolean" territory can be claimed in all rightness by the circle of
creators and the circle of users. Today the circles are nearly contiguous.

The copyright conflict is territorial. And cyber space is the New World
being invaded by successive waves of colonists, each sailing under their
own banner.

Robert Baron

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