Preventing unauthorised research use of forum posts

[ShipOfTheseus]

Hello

I wonder whether anyone here would be able to advise on the following hypothetical situation.

There is an internet message board for people who are, let’s say, flat-earthers. Once registered, they share their geophysical speculations and unburden themselves of other preoccupations, sharing many personal details, safe in the knowledge that the message board has strict rules of conduct, stringently applied by a volunteer moderator team.

An academic researcher into the psychology of delusion registers for the board, signing up to the terms and conditions. He constructs a matrix of posts and posters, and through advanced analytical techniques correlates firmness of conviction with adverse life experiences. He publishes his findings, with verbatim quotes from the message board posters. Although these quotes are not attributed, it would be trivially easy for anybody reading the academic paper to find them on the message board, and link them to a particular poster.

Anyway, the question I have registered to ask is whether there are any steps, under either US or UK copyright law, which the message board administrators could have taken to prevent the researcher from accessing the posts and then using them in a manner which is intrinsically hostile to the purposes of the forum.

Is there any form of words which, if assented to by a message board registrant, would prevent them from using a “fair dealing” or “fair use” response to claims that copyright has been infringed? If so, would it help for the posters (who presumably retain copyright in their posts) to explicitly assign some rights to the adminstrators (say, “compilation and research” rights)?

Even if statements intended to warn off the researcher lacked legal enforceability, might they have value in frustrating ethical approval from the researcher’s institution, or give academic journals reason not to publish the paper?

Any responses or suggestions gratefully accepted. And please do bear in mimd that the flat-earthers here are entirely hypothetical; I am as Copernican as the rest of you.

[AndyJ]

Hi ShipOfTheseus and welcome to the forum.

You are correct to say that the authors of each of the individual postings on a forum are the owners of the copyright in anything they have written. The terms and conditions of the site will, as a minimum, probably require the posters to licence the forum owners to publish, copy and store their postings, but that will probably be the extent of any transfer of rights. The same terms and conditions will probably require members not upload any copyright material for which they don't own the rights. These terms are intended to provide a workable environment in which the forum members can express their own views and if necessary argue against the views of others on the same forum, including the ability to quote certain parts of earlier postings. Even if a specific forum introduced much stricter terms, which forbade the external use of quotations from the postings of others, any disregard of this term by a member would be a matter of contract law, not copyright law. In most cases this might lead to the offending member being banned or otherwise sanctioned.

Copyright law in both the USA and UK acknowledges the limited exception to quote from the work of others. This accords with Article 10 of the Berne Convention which governs the general copyright activities of about 181 countries. In the USA quotation comes under the Fair Use heading within section 107 of the 1976 Copyright Act and it is not necessary to cite the source of the quotation, even though this is technically in breach of Article 10(3) of Berne. Of course where any quotation is done properly, say for the purpose of academic research or review, then such sources ought to be cited in any case. In the UK quotation comes under the heading of fair dealing and is authorised by section 30 of the Copyright Designs and Patents Act 1988; this exception can only be relied upon if the source is cited. In both cases, the emphasis is on the word 'fair'. In the USA the Fair Use factors tend to concentrate on the economic implications of using another person's work, whereas in the UK it is more a matter of not quotating more than is strictly necessary for the second author's purpose. Under UK law the quoting of another person's work can be justified under the standard 'quotation' exception (section 30(IZA)) or under the review and private study exception (section 29).

From this you can see that your hypothetical researcher does have the law on his/her side if they wanted to make selective quotations to support their thesis. This situation cannot be reversed by any terms and conditions which may be applied by an individual website or forum, or indeed a publisher in the conventional sense. Sub section (4) of section 30 CDPA expressly forbids this:

(4) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of subsection (1ZA), would not infringe copyright, that term is unenforceable.

The fact that the researcher may have taken and used the quotes for hostile or negative reasons does not alter the situation and would not, of itself, adversely affect the assessment of what is 'fair' in either the Fair Use or Fair Dealing context. Indeed the UK's section 30 exception specifically talks of criticism as a permitted purpose for the quotation. Even if the words were taken from a members only forum, there could be no claim to an expectation of privacy, if anyone was permitted to join the forum in the first instance.

Lastly, you mention the ethical dimension to this. Clearly copyright law does not address such matters. Perhaps an academic institution might be concerned about any unethical behaviour on the part of a member of its faculty or student bodies. What would constitute unethical behavior in such circumstances is not something I can comment on, even hypothetically.

[ShipOfTheseus]

Thank you AndyJ. You provide an extraordinary service (if this is your site) and this is very useful advice. Perhaps a passing contract law specialist or research ethicist will add some comment, but this seems to cover every aspect which directly touches copyright.

[AndyJ]

Hi SofT,

Since there are probably not too many contract lawyers on here, I'll try and provide a brief explanation for you. Contract law has developed over the centuries to provide a legal structure in which trade and commerce can operate. By and large it does not apply to domestic situations or to circumstances where the parties had not intended to create legal relations. Both parties must willingly enter into the agreement, without any coercion.

Terrms and conditions will apply to virtually all contracts. Sometimes they are exhaustive in their detail and other times they may just be implied into the contract. For example if you lend a friend £20, it will be assumed that you do not expect him to pay any interest unless this is a condition of the loan. In all probability this will be an oral contract but that doesn't make it any less valid. The same transaction between a bank and an individual would assume the opposite, that is, that interest will be payable, and of course it would included in the written terms. Terms in a contract can be ruled as unfair if they have been introduced (some might say 'imposed') by the stronger party and take advantage of the ignorance of the weaker party. A term which is not made available to one of the parties before the contract is made will usually be unenforceable unless such a term was normal and expected to be known in the circumstances. In many instances a specific unfair term will be made unenforcible by another statutory provision, such as section 30(4) of the Copyright Designs and Patents Act 1988 which I mentioned in my earlier posting.

So looking specifically at the terms and conditions attached to the membership of an internet forum, these also form the basis of a contract between the forum owner/provider and the member, although there is usuallyy no commercial element involved. Effectively the contract says: in exchange for the member's good behaviour on the site, the site owner will provide access to the forum. It will probably not be written down as a term, but self-evidently the contract is open to either side to terminate it at will, say if the member becomes bored and does not post anymore or the site owner can no longer afford to pay the hosting service or the registration fees for the URL, and closes the forum.

There a few sanctions available in the case of a breach of the terms of the contract. The site owner can't sue for damages if the member starts a flame war or flouts the terms and conditions; all he can do is suspend or ban the member and deny him access to the site. In most cases the contract is ended by a serious breach of it.

Furthermore, the contract is specifically between the owner and the member. The member owes no contractural obligations to his fellow members. Thus if one member infringes the copyright of another member that dispute is strictly between the two members, and even though the alleged infringement may have been facilitated via the forum, the site owner is not a party to the dispute because he has been licenced by the copyright owner to host the material and he is not required to take active steps to prevent anyone else making their own copies. This is not only due to contract law, but also by a protection* provided in Articles 14 and 15 of the EU's Electronic Commerce Directive which is retained in UK law through the Electronic Commerce (EC Directive) Regulations 2002.




* The same provisions mean that if a member posts some infringing copyright material on the forum, and the forum owner has no knowledge that it is infringing, the owner is not liable for that infringement provided that he takes steps to remove the material once he has been informed about it.