Can I ask for your assistance to iron out a little copyright wrinkle please? Just the legal position please, not any moral considerations!
* Student blog (UK institution)
* Public accessible
* No commercial element, it is for personal research
I want to use some images which are copyright, located on other websites, on my own blog. The page form will be - short introduction, image with full credit and Harvard reference, paragraph of criticism and analysis directly related to the image and/or the photographer..... repeated for successive images.
At first consideration this would seem to be 'fair dealing' (is is s.29?), however I have been advised elsewhere that the fact that I am publicly publishing it makes it a form of copying—and therefore contravenes copyright. Where do I stand?
Images on public blog
Re: Images on public blog
Hi concentrik,
What you want to do - criticism and review of copyright works - is permitted under the fair dealing exception contained in section 30 of the Copyright Designs and Patents Act 1988, and there is no prohibition of this being done in a forum or blog which is accessible by the public. Whoever advised you may have been thinking of section 29 (research and private study) which ceases to be fair dealing if the research containing the copied work is published commercially. This would not apply in your case unless there were adverts which appeared on the same page, which seems unlikely if this is an academic website.
Much the same exception for criticism and review is also available under American copyright law, although there it is called fair use.
What you want to do - criticism and review of copyright works - is permitted under the fair dealing exception contained in section 30 of the Copyright Designs and Patents Act 1988, and there is no prohibition of this being done in a forum or blog which is accessible by the public. Whoever advised you may have been thinking of section 29 (research and private study) which ceases to be fair dealing if the research containing the copied work is published commercially. This would not apply in your case unless there were adverts which appeared on the same page, which seems unlikely if this is an academic website.
Much the same exception for criticism and review is also available under American copyright law, although there it is called fair use.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
-
concentrik
- New Member
- Posts: 3
- Joined: Mon Jul 09, 2018 3:50 pm
Re: Images on public blog
Thank you Andy J, yes I expect that's where the confusion has arisen. One last point will set me straight: I am using the whole image because unlike music or text the idea falls apart with just a portion. Would this cause difficulties, do you think? The resolution is very low, 72ppi and no more than 600 pixels on the long edge.
Re: Images on public blog
Hi concentrik,
It is recognised that when it comes to criticism of artistic works, it will frequently be necessary to include the whole work in order that the reader can actually see the aspect of the image being commented on. Obviously if you are providing a critique of a photographer's style and a single image will illustrate this, then you should only include one image. However if you need to comment on a marked change in style or some other factor over time, it might be necessary to include an example from the two extremes. As you seem to appreciate, the emphasis is the word 'fair' and so as long as you examine each decision to include someone else's work without seeking permission, on what a reasonable person would deem to be fair, then you shouldn't go far wrong.
And yes, using a low resolution image is a good idea, as apart from any other consideration, it shows you have actively sought to lessen the (economic) impact on the author of the original work.
It is recognised that when it comes to criticism of artistic works, it will frequently be necessary to include the whole work in order that the reader can actually see the aspect of the image being commented on. Obviously if you are providing a critique of a photographer's style and a single image will illustrate this, then you should only include one image. However if you need to comment on a marked change in style or some other factor over time, it might be necessary to include an example from the two extremes. As you seem to appreciate, the emphasis is the word 'fair' and so as long as you examine each decision to include someone else's work without seeking permission, on what a reasonable person would deem to be fair, then you shouldn't go far wrong.
And yes, using a low resolution image is a good idea, as apart from any other consideration, it shows you have actively sought to lessen the (economic) impact on the author of the original work.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
Re: Images on public blog
I have to disagree with Andy on this, from what you have discribed so far, your use of copyrighted works would not be covered by any of the current exceptions. Here is a link with a detailed legal explanation on why.
https://www.gov.uk/guidance/exceptions- ... vate-study
https://www.gov.uk/guidance/exceptions- ... vate-study
Re: Images on public blog
Concentric,
The problem occurs because you wish to ‘publicly’ publish copyrighted works. The exceptions available would not cover this as they are merely intended to protect students from photocopying images for their course work and using the content to debate and critique.
The problem occurs because you wish to ‘publicly’ publish copyrighted works. The exceptions available would not cover this as they are merely intended to protect students from photocopying images for their course work and using the content to debate and critique.
Re: Images on public blog
Hi James,
I think you need to go back and read concentrik's original post where he/she says
In a other words the appropriate exception would be section 30, for the purposes of criticism and review. This exception does not prevent the publication of the review - indeed it was first created long ago to allow newspapers and journals etc to publish brief extracts of books and other similar works in the form of book reviews. There is nothing in section 30 which prevents the exception being used for photographs, other than where the proposed use is for the purpose of news reporting (ie section 30(2)).
On that basis, your first comment is wrong.
And I'm afraid your second comment is also on the wrong track, where you state that "they are merely intended to protect students from photocopying images". You seem to be referring to the private study/research exception (section29), which I agree will cease to be fair dealing if the research is published 'for commercial purposes'. However, publication in a non-commercial context (as concentrik described) would not normally invalidate the section 29 exception. But as already discussed, concentrik does not need to rely on section 29, as section 30 exactly covers what he/she wants to do.
I think you need to go back and read concentrik's original post where he/she says
(my emphasis added)The page form will be - short introduction, image with full credit and Harvard reference, paragraph of criticism and analysis directly related to the image and/or the photographer
In a other words the appropriate exception would be section 30, for the purposes of criticism and review. This exception does not prevent the publication of the review - indeed it was first created long ago to allow newspapers and journals etc to publish brief extracts of books and other similar works in the form of book reviews. There is nothing in section 30 which prevents the exception being used for photographs, other than where the proposed use is for the purpose of news reporting (ie section 30(2)).
On that basis, your first comment is wrong.
And I'm afraid your second comment is also on the wrong track, where you state that "they are merely intended to protect students from photocopying images". You seem to be referring to the private study/research exception (section29), which I agree will cease to be fair dealing if the research is published 'for commercial purposes'. However, publication in a non-commercial context (as concentrik described) would not normally invalidate the section 29 exception. But as already discussed, concentrik does not need to rely on section 29, as section 30 exactly covers what he/she wants to do.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
Re: Images on public blog
Hi Andy,
Yes you are correct, I think I was on the wrong track with the private study/research exemption. Coincidentally, the link I sent in my last post did also include a paragraph on "Criticism, review and reporting current events" which I now agree is the relevant exemption in this case.
I still don't agree that given the criteria listed by concentrik, that this exemtion would apply for the use they have stated. If they were challenged with copyright infringment he/she would need to prove that the use of the photograph was "fair" and to be considered "fair" it's use should not conflict with the way that the owner/photographer normally exploits their work. So, when thinking about whether their use was fair, they would need to ask themselves if their use of the copyright material is or would be in commercial competition with the copyright owner.
Perhaps then it could be argued that concentrik's use of publicly publishing the image creates a copy which directly competes with the photographers work. For instance, if a member of the public made an image based search for any of the criteria included in that work and two instances of the image appear in the results, concentrik copy could potentially divert the user away from the original source and as a result this could be argued to be damaging to the photographer.
Yes you are correct, I think I was on the wrong track with the private study/research exemption. Coincidentally, the link I sent in my last post did also include a paragraph on "Criticism, review and reporting current events" which I now agree is the relevant exemption in this case.
I still don't agree that given the criteria listed by concentrik, that this exemtion would apply for the use they have stated. If they were challenged with copyright infringment he/she would need to prove that the use of the photograph was "fair" and to be considered "fair" it's use should not conflict with the way that the owner/photographer normally exploits their work. So, when thinking about whether their use was fair, they would need to ask themselves if their use of the copyright material is or would be in commercial competition with the copyright owner.
Perhaps then it could be argued that concentrik's use of publicly publishing the image creates a copy which directly competes with the photographers work. For instance, if a member of the public made an image based search for any of the criteria included in that work and two instances of the image appear in the results, concentrik copy could potentially divert the user away from the original source and as a result this could be argued to be damaging to the photographer.
Re: Images on public blog
Hi James,
Yes I agree that concentrik, or indeed anyone in a similar situation, needs to be careful not to damage the economic rights of the photographer, and I said as much in my second response in this thread, in answer to concentrik's intention to use a low resolution version of the photograph(s) he/she wishes to dicuss.
Of course one method which avoids the problem (at least within the European Union) is merely to link to the image under discussion, and not copy it at all. This includes dynamic linking in a way that automatically presents the image within the page of the blog where the criticism is presented, by calling up the image from the authorised host server. Some people criticise this as stealing bandwidth from the host, and that under certain circumstances it can avoid triggering advertising clicks which bring revenue to the host site, but whatever the pros and cons of these ethical arguments, it is legal from a copyright point of view.
And theoretically using such a method does not necessitate crediting the original author, as it no longer falls within fair dealing. That said, clearly concentrik intends to credit the photographers because he/she appears to be operating in a semi-academic context where citing one's sources is usually required. (I have explained why linking in this way is legal in a number of earlier threads, such as this one).
Yes I agree that concentrik, or indeed anyone in a similar situation, needs to be careful not to damage the economic rights of the photographer, and I said as much in my second response in this thread, in answer to concentrik's intention to use a low resolution version of the photograph(s) he/she wishes to dicuss.
Of course one method which avoids the problem (at least within the European Union) is merely to link to the image under discussion, and not copy it at all. This includes dynamic linking in a way that automatically presents the image within the page of the blog where the criticism is presented, by calling up the image from the authorised host server. Some people criticise this as stealing bandwidth from the host, and that under certain circumstances it can avoid triggering advertising clicks which bring revenue to the host site, but whatever the pros and cons of these ethical arguments, it is legal from a copyright point of view.
And theoretically using such a method does not necessitate crediting the original author, as it no longer falls within fair dealing. That said, clearly concentrik intends to credit the photographers because he/she appears to be operating in a semi-academic context where citing one's sources is usually required. (I have explained why linking in this way is legal in a number of earlier threads, such as this one).
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
Re: Images on public blog
Hi Andy,
To be honest I think that either method used to display and publish an image on any given webpage is questionable regardless of the rulings mentioned in your other posting. Clearly the criticism, review exception was written at a time when little or no consideration had been given for images being used on the internet as they are today. To interprit this excemption in a way as to believe that it would be lawful to upload and publish an image on a blog is quite frankly wishful thinking, especially given the fact that the excemption would only apply if the use of the image was considered "fair dealing"
It is fairly obvious that it was the intention of the excemption to allow small extracts and snippets of works to be published as part of critique and review and the "fair dealing" element pretty much protects any work from being used in it's entirity (at any size) as It would be very difficult to argue that any use on a blog post was not damaging the economic rights of the creator. This is clearly obvious for works such as text, music and moving image, why would photographs be exempt from this?
While Concentrik has detailed that their publishing of the images would be done under the caveat of "personal research" I am still rather sceptical of what that actually means in reality. Most other "student blogs" of a similar nature rarely adhere to the basic criteria required by the excemtion, and that is before you then give consideration to actually publishing photographs in their entirety.
To be honest I think that either method used to display and publish an image on any given webpage is questionable regardless of the rulings mentioned in your other posting. Clearly the criticism, review exception was written at a time when little or no consideration had been given for images being used on the internet as they are today. To interprit this excemption in a way as to believe that it would be lawful to upload and publish an image on a blog is quite frankly wishful thinking, especially given the fact that the excemption would only apply if the use of the image was considered "fair dealing"
It is fairly obvious that it was the intention of the excemption to allow small extracts and snippets of works to be published as part of critique and review and the "fair dealing" element pretty much protects any work from being used in it's entirity (at any size) as It would be very difficult to argue that any use on a blog post was not damaging the economic rights of the creator. This is clearly obvious for works such as text, music and moving image, why would photographs be exempt from this?
While Concentrik has detailed that their publishing of the images would be done under the caveat of "personal research" I am still rather sceptical of what that actually means in reality. Most other "student blogs" of a similar nature rarely adhere to the basic criteria required by the excemtion, and that is before you then give consideration to actually publishing photographs in their entirety.
Re: Images on public blog
This has been asked on another forum. I just don't understand why you don't simply ask permission. Firstly, it is the polite thing to do. Secondly, you will get experience of communicating with the subjects of your thesis. And, finally, you might get more material from your subjects than is normally available.
Re: Images on public blog
Hi ATMOSBOB,
The CJEU decision in case C -161/17 does not really break new ground or create new law, it's just a re-statement of most people's understandiing of the law for over a century, namely that it is infringement to copy someone else's work, unless there is a specific exception to cover the type of use employed by the copier. In the CJEU case, the schoolgirl was using the photograph as an illustration, something which is not included in the exceptions either for educational purposes, or for criticism and review.
And so since the facts in the CJEU case were different, this decision has no bearing on the subject of this thread, namely using a work within the long-established exception (first outlined in the Berne Convention 1886) of copying a work for the purpose of criticism or review, which is permitted by both UK and EU law, as well as the law of every other jurisdiction I am aware of.
The CJEU decision in case C -161/17 does not really break new ground or create new law, it's just a re-statement of most people's understandiing of the law for over a century, namely that it is infringement to copy someone else's work, unless there is a specific exception to cover the type of use employed by the copier. In the CJEU case, the schoolgirl was using the photograph as an illustration, something which is not included in the exceptions either for educational purposes, or for criticism and review.
And so since the facts in the CJEU case were different, this decision has no bearing on the subject of this thread, namely using a work within the long-established exception (first outlined in the Berne Convention 1886) of copying a work for the purpose of criticism or review, which is permitted by both UK and EU law, as well as the law of every other jurisdiction I am aware of.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007