Re: Digitizing art slides?

On 4/29/99, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> On 4/23/99, Dan L. Burk <burkdanl[_at_]shu.edu> wrote:
> >
> > On 4/22/99, Carline Haga <carline.haga[_at_]thomson.com> wrote:
> > >
> > > On 04/21/99, Dick Perrin <perrinr[_at_]lib01.ferris.edu> wrote:
> > > >
> > > > We have a faculty member who wants to digitize the art slides
> > > > that he has been showing in his class for several years. After
> > > > they have been digitized, he want to mount the images on his
> > > > WebCT site for his students to access in their studies.
> > > >
> > > > What procedures must he follow to comply with current copyright
> > > > laws. He feels that this is a fair use of course.
> > >
> > > This is pretty basic. Who owns copyright to the slides? Permission
> > > must be obtained from the copyright holder to distribute the slides
> > > for his class on the Web (all the conditions being given in the
> > > request for permission -- such as password-protected site, length
> > > of time shown on the Web, etc.)
> > >
> > > If these rights were cleared when he began using the slides in class,
> > > the faculty member would not have to clear them again, however.
> >
> > It's not clear to me that this is basic at all, as Tyler Ochoa's reply
> > in this thread points out. Assuming that there is a valid copyright
> > in the slides -- which, if they are public domain works, there may
> > not be -- there is probably no reason for the teacher to have obtained
> > permission for his current use of the slides in class, since section
> > 110 and/or fair use principles allow display of the slides in
> > face-to-face instruction without obtaining permission.
> >
> > The question is whether placing the slides on the web now implicates
> > rights not implicated in the classroom setting. It's not at all clear
> > that slides on the web are being "distributed," although they are likely
> > being reproduced, and possibly publicly displayed. The use of password
> > protection or other technical restrictions might, as Llew Gibbons
> > suggested, modulate whether the display is "public" under the statute.
> >
> > Certainly the section 110 exemption will not apply in the same way,
> > since the instruction is no longer face-to-face. Transmission is
> > permitted to another classroom, or to physically disabled students, but
> > the question does not indicate that these narrow situations will apply.
> >
> > This is, in short, an extremely complex question -- although an
> > increasingly common one -- which cannot really be answered without
> > considerably more information about the nature of the slides, nature
> > of the class, and nature of the use.
>
> It is worth pointing out that the Register of Copyright is required to
> "submit to the Congress recommendations on how to promote distance
> education thourgh digital technologies, including interactive digital
> networks, while maintaining an appropriate balance between the rights
> of copyright owners and the nees of users of copyrighted works."
> DMCA sec. 403. As another post pointed out, the report was due
> April 28. Undoubtedly the report and any resulting legislation will
> affect whether use of the sort discussed in this thread will be
> permitted in the future.

Most of these discussions about posting images on the web revolve around the issue of whether 1) because they are being used for classes and instruction they qualify as fair uses for educational purposes and/or 2) they qualify under the distance education provision as face-to-face instruction -- which they clearly don't. But, if you read the fair use code carefully, you'll discover that it is not only educational uses that may qualify as fair ones. Reporting, commentary and criticism (among other unnamed uses) also may be factors in determining fair use, and it seems to me that just because a use is educational or because it is reproduced in an educational context that is not face-to-face, other allowances cited in the code might, in themselves, mitigate for a finding of fair use. The face-to-face requirement would thus be nullified if the other factors may be held to have significance. Thus, assuming that all the other fair use hurdles are passed or deemed to be considered insignificant, one may be able to claim fair use for web-posted images that appear in the context of a discussion for which images are being used to explain or illustrate a point -- as in the context of reporting or criticism. The fact that this material is presented in an educational context is just another factor. What clearly will be the most difficult claim to support under fair use is the posting of just copyrighted images, as for example, the contents of a visual resources collection, without commentary -- for their own sake.

There are obvious reasons, however, why it is in the public interest to have available on the web the contents of such visual resources collections. This is why I consider the identification of public domain images in such collections, and the collection of public domain images an activity of prime importance.

Robert Baron
rabaron[_at_]pipeline.com Received on Tue May 04 1999 - 15:53:13 GMT