Internet use of Images and Text

'Is it legal', 'can I do this' type questions and discussions.
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RogerFarnworth
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Internet use of Images and Text

Post by RogerFarnworth »

My apologies if this has been covered in detail already. I have been trying to search the forum and almost every term I try is clearly too global and the search engine ignores it. Consequently, I have undertaken some of my own research which I would like to check with you.

I have recently had a few people querying the use of materials from other internet sites on my non-commercial blog. So I am trying to clarify the position.

These are my notes and research. Do I have the position right? Or am I misjudging it?

Copyright on Internet Images and Text

The situation relating to copyright on the internet is confusing. The detail of laws in different parts of the world is different. The truth is that the issue is confusing to most people.

The 'socialmediaexaminer.com', [1] which is admittedly an American page, says the following:

Copyright laws were established not to give the author the right to deny their work to other people, but instead to encourage its creation.

Article I, Section 8, clause 8, of the United States Constitution states the purpose of copyright laws is “to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

It’s a delicate balance between the rights of the creator and the public’s interest. When in conflict, the balance tips more heavily toward the public’s interest, which is often contrary to what the creator believes to be fair or just.
[1]

However, the UK government [2] says:

One can use copyright works without permission from the copyright owner, such as for private study or non-commercial research, although some exceptions are not available for photographs. Further details are available here:

www.gov.uk/guidance/exceptions-to-copyright

If permission is required to use an image, permission will need to be obtained from all the copyright owners, whether it is a single image with numerous creators, a licensed image, or an image with embedded copyright works. Sometimes there will be one person or organisation that can authorise permission for all the rights in that image; in other cases separate permission may be needed from several individual rights owners.
The creator of a copyright work such as an image will usually have right to be acknowledged when their work has been used, provided they have asserted this right. If you are unsure whether or not the creator has asserted this right, then it is recommended that you provide a sufficient acknowledgement when using their work.
[2]

The key question for many of us who write blogs and who both quote from other sources and make use of pictures from those sources, is what is meant by the words in bold italics above.

1. Text on the Internet and in other primary sources


The first question to address is what is meant by 'fair dealing'. Another government website [3] talks about 'fair dealing':

Certain exceptions only apply if the use of the work is a ‘fair dealing’. For example, the exceptions relating to research and private study, criticism or review, or news reporting.

‘Fair dealing’ is a legal term used to establish whether a use of copyright material is lawful or whether it infringes copyright. There is no statutory definition of fair dealing - it will always be a matter of fact, degree and impression in each case. The question to be asked is: how would a fair-minded and honest person have dealt with the work?

Factors that have been identified by the courts as relevant in determining whether a particular dealing with a work is fair include:

Does using the work affect the market for the original work? If a use of a work acts as a substitute for it, causing the owner to lose revenue, then it is not likely to be fair is the amount of the work taken reasonable and appropriate? Was it necessary to use the amount that was taken? Usually only part of a work may be used

The relative importance of any one factor will vary according to the case in hand and the type of dealing in question.
[3]

'Fair dealing' is one element of this issue.  A more critical question is: What is meant by 'Non-commercial research'? One place to look for answers is with Wikipedia (Creative Commons) and specifically their comments relating to this matter. [4]

Non-Commercial (NC) "means not primarily intended for or directed towards commercial advantage or monetary compensation. The definition is intent-based and intentionally flexible in recognition of the many possible factual situations and business models that may exist now or develop later. Clear-cut rules exist even though there may be gray areas, and debates have ensued over its interpretation. In practice, the number of actual conflicts between licensors and licensees over its meaning appear to be few." [5]

NonCommercial explained

Creative Commons NC licenses expressly define NonCommercial as “not primarily intended for or directed towards commercial advantage or monetary compensation.” The inclusion of “primarily” in the definition recognizes that no activity is completely disconnected from commercial activity; it is only the primary purpose of the reuse that needs to be considered.

The definition of NonCommercial is intentionally flexible; the definition is specific enough to make its intended operation and reach clear, but versatile enough to cover a wide variety of use cases. Narrowly or exhaustively attempting to prescribe every permitted and prohibited activity is an impossible task and, in Creative Commons’ judgment, an ill-advised one. Thus, the definition sets out a principle for determining what uses do and do not qualify, but does not list specific use cases (aside from peer-to-peer file sharing)
. [5]

NonCommercial turns on the use, not the identity of the re-user.

The definition of NonCommercial depends on the primary purpose for which the work is used, not on the category or class of reuser. Specifically, a reuser need not be in education, in government, an individual, or a recognized charity/nonprofit in the relevant jurisdiction in order to use an NC-licensed work. [5]

For a given work, permitted NC uses may still be restricted due to non-copyright rights.

Even if a use is NonCommercial for purposes of the CC license, it may still not be permitted because of other rights that prevent that particular use of the work. For example, a use that is otherwise NonCommercial could violate the publicity or personality rights of an individual featured in the work. [5]

As can be seen above, Creative Commons defines the exemption of Non-Commercial use under Copyright Law as being any use that is primarily not commercial. This suggests that provided a blog or a website is not primarily commercial, then it meets that exemption. However, the case is argued primarily on the grounds of US law. Is the position different in the UK?

The best place to look for advice on this matter in the UK is "Jisc" (formerly the Joint Information Systems Committee) whose role is to support post-16 and higher education, and research, by providing relevant and useful advice, digital resources and network and technology services. [7] Their website comments as follows:

Exceptions to infringement of copyright

Copyright exceptions allow limited use of copyright works without the permission of the copyright owner.

Fair dealing for research and private study (s.29 CDPA)

UK copyright law permits fair dealing with a work for the purposes of non‑commercial research and private study. This covers copying of all types of copyright work. It means that researchers and students can copy extracts from sound recordings, films and broadcast as well as literary, dramatic and musical works for these purposes.

The word ‘research’ is not defined but in terms of Section 29 of the Copyright, Designs and Patents Act 1988 (CDPA) means any form of research as long as its purpose is non-commercial.

The law requires that acknowledgement be given to the copied source when used in research or private study. For academic staff and research students, this creates the obligation to use proper citations. The only exception may be situations where acknowledgement would be impossible for practical reasons.
[7]

It would seem, therefore that any blog or website which does not have a primarily commercial interest is free to quote directly from source material provided that the source is properly acknowledged.

Does this also cover the use of images?

2. Images on the Internet


There is advice provided on this matter by ArtUK on their website [8]:

The concept of fair usage exists within UK copyright law, commonly referred to as fair dealing. It's a framework designed to allow the lawful use or reproduction of work without having to seek permission from the copyright owner(s) or creator(s) or infringing their interest. In the UK, there are a number of 'fair dealing' exceptions to copyright law.

Images ... can be used for non-commercial research or private study purposes, and other UK exceptions to copyright permitted to users based in the United Kingdom under the Copyright, Designs and Patents Act 1988, as amended and revised.

If you reuse an image, it is your responsibility to make sure that a copyright exception applies (such as fair dealing criticism and review, quotation, or reporting a current event).

If an image is released under a Creative Commons (CC) licence, other rules may apply and the type of CC licence is normally more permissive. Review 'How you can use this image' section on the individual artwork page to see what is permitted by a rights holder.

Depending on your type of use, you might need to actively obtain further consent from the collection that owns the image. Where the artwork is in copyright (remember, the lifetime of the artist plus 70 years), further permissions will also be needed from the artist(s), their estates or nominated rights-holder(s). The artwork credit lines indicate who manages the rights within the artwork and the image
. [8]

The non-commercial fair dealing exception is allowed if:

1) The purpose of the use is non-commercial research and/or private study
2) The use of the materials is fair
3) The use is made by researchers or students for their own use only
4) Researchers give credit to the copyright holder

Generally, non-commercial use could be:

Use in free educational lectures and classes
Use on an individual or group's website discussing the artwork in question
Use on websites that are primarily information-led, research-oriented and obviously non-commercial in nature.


Summary

It seems therefore that for artwork, photographs and text three dominant factors apply. They are: is the use fair; is it non-commercial; is it a research-based use.

References

1. https://www.socialmediaexaminer.com/cop ... ine-images, accessed on 15th December 2019.
2. https://assets.publishing.service.gov.u ... 201401.pdf, accessed on 15th December 2019.
3. www.gov.uk/guidance/exceptions-to-copyright, accessed on 15th December 2019
4. https://wiki.creativecommons.org/wiki/N ... rpretation, accessed on 15th December 2019.
This conclusion is borne out by the "Defining Noncommercial Study,"
5. https://wiki.creativecommons.org/wiki/D ... commercial, accessed on 15th December 2019.
6. https://www.jisc.ac.uk/guides/copyright ... -copyright, accessed on 15th December 2019.
7. https://www.jisc.ac.uk/guides/copyright ... -copyright#, accessed on 15th December 2019.
8. https://artuk.org/about/copyright-exceptions#, accessed on 15th December 2019.
9. https://artuk.org/about/what-is-non-com ... ercial-use, accessed on 15th December 2019.[/list]

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AndyJ
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Re: Internet use of Images and Text

Post by AndyJ »

Hi Roger,

You have been very thorough, which is a lot more than can be said of some users on the internet who seem to hold the view that just about anything can be taken and re-used because someone else has published it; it's the re-tweeting philosophy taken to extremes.

If you and your blog are based in the UK, that is the better legal framework to follow. It does not matter too much where your subscribers are based if you are not involved in directly selling through your blog.

UK copyright law is largely based on EU law on the subject, and by and large the EU takes a stance which is strongly protective of the rights of authors and creators. The phrase "provide[s] a high level of protection for rightsholders" appears in the preamble to all the main EU Directives concerning copyright and this is reflected in the judgments and opinions of the Court of Justice of the European Union (CJEU) when it is asked to clarify or interpret EU law; and currently the UK courts must follow the CJEU decisions. Other recitals in the Directives strongly assert the general desirability for rightsholders to be given fair remuneration for the use of their work, even though that use may itself be non-commercial in nature. For example the UK is unable to adopt one particular fair dealing exception permitted under the EU Directives which would allow individuals to make copies for private use of legally owned copyright works, such as music, in order that they may be played across a number of devices, for instance like ipods. This is because the UK has not put in place a satisfactory regime which ensures that the rightsholders are remunerated each time this copying occurs (see section 28B of the Copyright Designs and Patents Act 1988 which is currently not in force)

You asked about what non-commercial means in the context of fair dealing. First of all I would advise you to ignore the definition given in the context of Creative Commons licensing. That is very much a stand alone use of the term and not one that the courts would apply unless a creative commons licence was in dispute. The EU law tends to use the term 'directly or indirectly commercial' in this context, by which they mean that if your blog attracts ad revenue or sponsorship (eg via Patreon etc) then that would be classed as indirectly commercial. If you were to use an image in order to sell something shown in the image then that would be direct commercial usage. However if your use of an image or text is solely there to provide the basis for review of or discussion on a subject to which the image or text directly relate, then the balance shifts in your favour provided that you do not use more of the copyright work than is strictly justified by the blog posting itself. Say you wanted to provide a critical assessment of the various Star Wars films. Using posters or general images from the various films to make your article more visually appealling would not be fair dealing, whereas quoting a piece of clunky dialogue from one of the lesser films might well be justified as an example of how the standard of the screenwriting changed over the series.

And a quick aside here. Under EU law as interpreted by the CJEU, if you only link to an image, video or text which is hosted on someone else's server and do not copy the work onto the server which hosts your blog, then you do not infringe copyright, and the fair dealing exceptions are irrelevant. What's more you don't have to be certain that the site hosting the image etc is doing so legally. This may seem counter-intuitive, but the CJEU analyses the issue from the perspective of those to whom the rightsholder had intended to allow access to his/her work in the first place. If, say, a photographer places an image for which he owns the copyright on his own website or on a site like Flickr without any technical barriers as to who may view the image, then the public which he/she has authorised to view the work is, potentially, anyone with internet access. Therefore if you link to that site in a way that a reader of your blog is served the image directly from the source server, you have have not infringed upon the right of reproduction or the right of distribution which belong to the copyright owner. You can even use framing techniques which make the image appear on your blog; the one thing you may not do under those circumstances is create a new copy which resides on the server which holds your blog. For that you need to rely on far dealing.

So to summarise, the exceptions which may allow you to copy an image or text which is protected by copyright (see sections 28 - 31 CPDA) are based on the doctrine of fair dealing. This means that the use must be justifiable in the circumstances where the work is re-used and no more of the original work is used than the occasion demands. In two specific cases (section 29 private study/research, and section 29A data analysis) the use must be neither directly nor indirectly commercial. Fair dealing for the purposes of criticism, review, caricature/parody, quotation or news reporting may be commercial in nature, but must be accompanied by sufficient acknowledgement of the source. Note that (contrary to what the ArtUK article implies), photographs may not be used under the news reporting fair dealing exception. If you re-use an image or text which has been released under a Creative Commons or similar licence, ensure that you fully abide by the terms of that licence, for example if an attribution is required.

I hope this helps you.
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RogerFarnworth
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Re: Internet use of Images and Text

Post by RogerFarnworth »

Hi Andy

Thank you for giving the time to a lengthy response, I really appreciate it. I want to read it through a couple of times and perhaps get back to you if that is OK.

Kind regards

Roger

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Re: Internet use of Images and Text

Post by RogerFarnworth »

Hi again Andy.

I would like to produce a short blog for my site which explains some of these copyright issues and I wonder whether you would be happy for me to place the following in the text of a blog and referenced/attributed to the Copyright Aid webpage? It matches pretty much my practice. I do make limited use of 'fair dealing' in that, for example, in a recent blog I have produced a single page from a magazine article which contained two pictures the dominant picture was taken by the writer of the magazine article from a Better Peacock image from the lat 1800s. The magazine itself was printed early this century. The image on that page illustrated part in f my discussion about locomotives in use at Horwich Loco Works from the late 1800s to the 1960s.

I also found your comments about links to images really helpful. My blog does not have adverts, I pay for the hosting platform (WordPress) and do not use their free version. I believe the free version risks them permitting advertising on my blog.

Kind regards

Roger

Suggested text. ........

UK copyright law is largely based on EU law on the subject, and by and large the EU takes a stance which is strongly protective of the rights of authors and creators. The phrase "provide[s] a high level of protection for rightsholders" appears in the preamble to all the main EU Directives concerning copyright and this is reflected in the judgments and opinions of the Court of Justice of the European Union (CJEU) when it is asked to clarify or interpret EU law; and currently the UK courts must follow the CJEU decisions. Other recitals in the Directives strongly assert the general desirability for rightsholders to be given fair remuneration for the use of their work, even though that use may itself be non-commercial in nature. For example the UK is unable to adopt one particular fair dealing exception permitted under the EU Directives which would allow individuals to make copies for private use of legally owned copyright works, such as music, in order that they may be played across a number of devices, for instance like ipods. This is because the UK has not put in place a satisfactory regime which ensures that the rightsholders are remunerated each time this copying occurs (see section 28B of the Copyright Designs and Patents Act 1988 which is currently not in force)

EU law tends to use the term 'directly or indirectly commercial' in this context, by which they mean that if your blog attracts ad revenue or sponsorship (eg via Patreon etc) then that would be classed as indirectly commercial. If you were to use an image in order to sell something shown in the image then that would be direct commercial usage. However if your use of an image or text is solely there to provide the basis for review of or discussion on a subject to which the image or text directly relate, then the balance shifts in your favour provided that you do not use more of the copyright work than is strictly justified by the blog posting itself.

Under EU law as interpreted by the CJEU, if you only link to an image, video or text which is hosted on someone else's server and do not copy the work onto the server which hosts your blog, then you do not infringe copyright, and the fair dealing exceptions are irrevalent. What's more you don't have to be certain that the site hosting the image etc is doing so legally. This may seem counter-intuitive, but the CJEU analyses the issue from the perspective of those to whom the rightsholder had intended to allow access to his/her work in the first place. If, say, a photographer places an image for which he owns the copyright on his own website or on a site like Flickr without any technical barriers as to who may view the image, then the public which he/she has authorised to view the work is, potentially, anyone with internet access. Therefore if you link to that site in a way that a reader of your blog is served the image directly from the source server, you have have not infringed upon the right of reproduction or the right of distribution which belong to the copyright owner. You can even use framing techniques which make the image appear on your blog; the one thing you may not do under those circumstances is create a new copy which resides on the server which holds your blog. For that you need to rely on far dealing.

So to summarise, the exceptions which may allow you to copy an image or text which is protected by copyright (see sections 28 - 31 CPDA) are based on the doctrine of fair dealing. This means that the use must be justifiable in the circumstances where the work is re-used and no more of the original work is used than the occasion demands. In two specific cases (section 29 private study/research, and section 29A data analysis) the use must be neither directly nor indirectly commercial. Fair dealing for the purposes of criticism, review, caricature/parody, quotation or news reporting may be commercial in nature, but must be accompanied by sufficient acknowledgement of the source. Note that (contrary to what the ArtUK article implies), photographs may not be used under the news reporting fair dealing exception. If you re-use an image or text which has been released under a Creative Commons or similar licence, ensure that you fully abide by the terms of that licence, for example if an attribution is required.

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Re: Internet use of Images and Text

Post by AndyJ »

Hi Roger,

I am entirely happy for you to use that extract on your blog. The main purpose of these forums is to inform people about copyright, and although the site invokes copyright protection on behalf of contributors generally, I personally do not when it comes to my postings.
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Re: Internet use of Images and Text

Post by RogerFarnworth »

Thank you Andy

My last post should have said that I do not host adverts on my site. Not quite sure how that ended up say something muddled.

Best wishes

Roger

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Re: Internet use of Images and Text

Post by AndyJ »

RogerFarnworth wrote:
Mon Dec 16, 2019 4:14 pm
My last post should have said that I do not host adverts on my site. Not quite sure how that ended up say something muddled.
No problem. I've corrected it for you.
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Re: Internet use of Images and Text

Post by RogerFarnworth »

Hi Andy

I am trying to get my head around 'framing techniques which make the image appear on a blog'. Are you able to point me to guidance on how to do this? I have been using hyperlinks to create images but the images on the blog seem not lead back to the original site that they came from.

Best wishes

Roger

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Re: Internet use of Images and Text

Post by AndyJ »

Hi Roger,

As you use Wordpress which supports HTML coding, you can use the <FRAMESET>, <FRAME> and <BASE> tags to create frames, but obviously you need to be relatively familiar with HTML coding to go down this route. I'm not sure how PHP handles the equivalent to frames.

But really if you just want to embed an image on a page within your blog you only need to use a basic HTML tag, for example something like this <img src="https://www.copyrightaid.co.uk/images/ca_logo.jpg">*, which should result in something like this: Image

However you will probably need to resize the image and also define its actual positioning, which is where framing can be useful. You could just use attribute tags like <WIDTH>, <HEIGHT> and <ALIGN> but again this involves a reasonable knowledge of HTML coding to work well. Also, when it comes to optimising your blog to work just as effectively on phones and other smaller devices, that really is outside my area of expertise.

I'm sorry I can't give you a more advanced tutorial on this as it's way beyond the scope of this forum, but if you search around I'm sure you can find other forums which can help. I would start with Wordpress's own support forums: Wordpress and only if you can't find the answer there, move on to the many other external help forums, such as wpbuffs.

*In this example I've linked to an image which is already on this server so it's not an external link of the type you need to use to avoid infringing copyright.
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Re: Internet use of Images and Text

Post by RogerFarnworth »

Dear Andy
The reply is much appreciated and it gives me ways into working out what to do. I thought I had is sussed but checking suggests that I have not. I will keep looking and very much appreciate the response.
Best wishes
Roger

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