Blogging and the Law: Copyright
How do you blog without getting sued? It seems like a very simple question. I know lots of science bloggers, and as far as I know none of them have been sued for blog-related material. And yet, the fear of legal action is a very real one for many science bloggers, myself included.
For most bloggers, there seem to be two areas where we are both fearful of breaking the law, and incredibly ignorant about what is/is not illegal. These areas are copyright and libel. Adrian Ebsary first brought up this issue in a comment on our ideas and suggestions page, and he has helped me to come up with a list of interview questions on both of these important topics. Today we will look at copyright, with interviews from John Wilbanks and Michael Geist.
As VP for Science, John Wilbanks runs the Science project at Creative Commons. He started and ran Incellico, an early-2000s biotech semantic database company. He has also been a semantic web fellow at the World Wide Web Consortium, a member of the project on mathematics and computation at MIT’s Computer Science & Artificial Intelligence Laboratory, a manager at the Berkman Center for Internet & Society at Harvard, and a legislative aide in the US House of Representatives.
Michael Geist is the Canada Research Chair in Internet and E-Commerce Law at the University of Ottawa. He performed his Bachelor of Laws (LL.B.) degree at Osgoode Hall Law School in Toronto, Master of Laws (LL.M.) degrees from Cambridge University in the UK and Columbia Law School in New York, and a Doctorate in Law (J.S.D.) from Columbia Law School.
Before the interview, just one more thing to get out of the way – a brief disclaimer from John Wilbanks:
“First, I need to state that Creative Commons is not a law firm, that I am not a lawyer, and this is not legal advice. Please make sure that this is the first thing posted out of this interview and retained on all copies of this interview“
As always, people are more than welcome to share the content in this blog post as they please. But if you choose to do so, please ensure that the above disclaimer is included (for the record, Adrian and I aren’t lawyers either). I should also point out that Michael and John answered these questions separately, via email, which is why their answers sometimes overlap (they weren’t simply ignoring each others’ response).
Now the interview!
SoB: In general, what line in the sand distinguishes far use from copyright infringement? In other words, when discussing someone else’s work (journal article, blog post, photo, etc) what is allowed and what is not?
MG: Simply discussing work is fine. Copyright protects expression, not the ideas themselves.
SoB: What is permissible when discussing a paper that uses a Creative Commons license (e.g. PLoS Medicine), and how does this differ from discussing of a paper with a more traditional copyright (e.g. the New England Journal of Medicine)?
JW: It’s important to realize that the CC license has to do with copying and distributing a creative work, not talking about the creative work! Thus, there is no difference in discussing a PLoS article from a NEJM article. The ideas in each article themselves are not copyrightable, only the way the ideas are expressed through the grace and flow of the styling and writing, and so forth. This is known as the idea-expression dichotomy (http://en.wikipedia.org/wiki/Idea-expression_divide) and is essential to understanding the role that CC licenses play. But we can all talk about ideas.
Fair use is an exception and limitation to copyright in the United States. It can be relied on by anyone for certain uses of a copyrighted work, whether or not the work is licensed under a CC license. There is no bright line about what is fair use or not, however, and whether it applies depends on the particulars of the situation.
Now, when discussing a paper, it is plausible that one might want to quote passages from the paper or display a table. These are uses that one might believe to be fair use (and I certainly believe so) but it’s definitely the case that some traditional publishers (who don’t use CC licenses) have brought copyright claims against bloggers and writers who have made such quotes and displays (my favorite such ludicrous story is that of Shelly Batts, see http://scienceblogs.com/retrospectacle/2007/04/when_fair_use_isnt_fair_1.php). The benefit to CC licenses, however, is that even if fair use doesn’t apply, a publisher that uses CC licenses would see this kind of quoting and displaying, generally, as a Good Thing, as evidence of increased impact (PLoS actively tracks its articles in the news!). To repurpose a famous quote from software, quoting and display is a feature of online open access, not a bug.
SoB: When it comes to journal articles that are copyright protected, is it ok to copy and paste a table or figure from the paper directly into a blog post, so long as you give attribution? If not, is it kosher to use the data from the paper to make your own figure, even if this figure is similar toone in the paper itself?
MG: You can seek to rely on fair dealing (with attribution).
JW: See the link to Shelley’s controversy above for the first part of the question. The tables or figures may or may not be copyrighted – it depends, usually, on just how creative the table or figure was, how many choices the author had in making the table, selecting the content, or creating the figure, where the author lives, and on and on. It’s complicated. And I’d like to believe that putting one into a blog post is a fair use. But what’s clear is that traditional publishers may well reflexively assert copyright, whether or not it exists and whether or not fair use applies, just as part of their normal business. When your model is built on maintaining control, then maintaining control is what you’ll try to do.
As for using the data to make your own figure, that is usually less likely to trigger copyright, but again, it can depend on other factors. Frequently, even if copyright doesn’t prevent some particular use, a publisher will make a subscriber sign a contract in which they give away rights such as their fair use rights as part of the deal for accessing the document in the first instance. Things like extracting data, or text indexing, or adding hyperlinks, all of these are the kind of things that get banned by contract clauses attached to copyright licenses in scientific publishing. This is why applying an unambiguous Open Access license like CC BY to the paper is so important. It takes all these complex questions about “Can I do this? Can I do that?” and turns all the answers into “YES – as long as you give credit” and otherwise comply with the terms of the open access license.
SoB: If a blog post infringes on someone’s copyright, what are the possible and/or likely repercussions? Does this differ between blogs that make money versus those that do not?
MG: Someone could sue for copyright infringement. It is more likely that they would issue a takedown notice and you may want to comply.
JW: Copyright infringement is a serious thing when it’s real (as opposed to mythical ones like Shelley’s). Whether or not actual infringement is involved, one frequent result is that the copyright holder asserts copyright and insists that the blogger “take down” the content. Sometimes, the copyright own may allow the content to remain up provided a royalty or other fee is paid. It depends. If a blog post is believed by the owner to be infringing, then it’s up to the copyright holder to choose a path that may include those mentioned or other courses of action, including filing a lawsuit.
SoB: With respect to fair dealing, do bloggers have the same rights as traditional journalists? If not, what line distinguishes a blogger from a journalist (e.g. if you blog for a media organization like Discover or a blog network like PLoS Blogs or Scientopia, are you considered a journalist or a blogger?)
SoB: If you teach a university lecture, is it ok to a) record it, and b) put it on your blog? (assuming that there are no other copyright issues with the content of the slides themselves)
MG: If it is my lecture, yes. If someone else’s lecture, you need permission.
JW: I know I sound like a broken record, but it depends. Did you sign an employment agreement with the university that gave it your copyrights? Or the right to block you from posting, because it might imply that the lecture was a course of the university (and therefore endorsed by the university, or similar)? If the speaker didn’t, and isn’t implying the university is endorsing, and the video doesn’t include students comments etc., then there’s some chance it might be postable without incident. The reality is, copyright policies of universities vary dramatically (you can look at the beginnings of a sample database we have built here: http://wiki.creativecommons.org/UCOP), so it’s important to check on your own situation before posting.
SoB: I live in Canada, but my blog is hosted in the United States. Does it fall under American or Canadian copyright laws?
MG: You may want to specify on the blog.
JW: If your question is which copyright law will apply, once again it will depend. The work is potentially protected under the copyright laws of both countries – depending on who created the work, where it is deemed first published, and similar. You may already know that both Canada and the United States (as well as many other countries) are parties to international copyright treaties that establish parameters for national copyright laws. The US Copyright Circular is a good example of the complexity of the international framework (http://www.copyright.gov/circs/circ38a.pdf). Here’s a nice visualization of the circular: http://punkish.org/copyright/treaties.html – between Canada and the US alone there are four agreements in place that are, in turn, implemented in national legislation within each country. The national laws should be consulted to determine whether, under any particular set of circumstances, the work is protected by each jurisdiction’s laws.
SoB: If someone threatens me with legal action, what should you do if a) you are in the right, or b) you are in the wrong?
MG: Talk to a lawyer.
JW: Ask for help. Ideally you call a lawyer.
SoB: If someone infringes on *your* copyright, what recourse do you have? Similarly, if a person re-uses my Creative Commons content without attribution, do I have any options?
JW: Ask them to stop infringing. If they don’t, call a lawyer.
If you’ve posted something under a CC license and you’re not being attributed, then that person is infringing unless you’ve waived attribution. Ask them to give you attribution, and if they don’t, then you should decide if you want to hire a lawyer. Sometimes the failure to provide attribution is an oversight, so while it is a violation of the CC license (unless the use is a fair use), many times contacting them and helping them understand how to provide attribution properly resolves the problem.
SoB: Does it break copyright law to link to another website or embed content that does itself break copyright law? For example, if someone creates a Slideshare presentation that breaks copyright laws, what will happen if I embed that presentation on my blog?
MG: Linking should not give rise to liability.
JW: Linking to things isn’t copying, but there is a debate as to whether providing a link might be considered contributing to infringement. So for example some online intermediaries have been in trouble for linking to copyrighted things (see here for some linking examples: http://ilt.eff.org/index.php/Copyright:_Infringement_Issues#Linking
I think in the case of a slideshare presentation, the odds are that if there’s a sense of copyright violation, slideshare will take down the file under their published process (http://www.slideshare.net/terms#dmca), and your embed will simply reflect that the file isn’t there anymore, just like you get the notice on youtube that says when a file has been removed due to a copyright claim.
SoB: If you take a video or picture of something at an academic conference, who owns the copyright?
SoB: If someone takes *your *picture in a public place, who owns the copyright?
JW: The photographer. But again, there may be publicity rights involved that affect the use and distribution of the image.
SoB: Does it break copyright law to copy a picture from a company’s website when discussing their products?
MG: If it contains a trademark, there may be issues.
SoB: If you want to use a picture or a video from a particular website, how can you identify the copyright?
JW: Copyrights don’t need to be marked or registered. The rights attach automatically upon creation. It’s the license terms that should be marked, as well as information that lets us identify and find the creator! Creative Commons licensed works are the easiest, because we provide machine-readable “code” that marks the work as being available for use under the terms of our licenses, using methods validated by the World Wide Web Consortium (W3C), which is the standards body that makes sure the web keeps working. This allows for Google and Yahoo and others to run search engines that tell you if a given work has a CC license. Otherwise, checking by hand and individually contacting the owners is one route. Another is to license images from paid sites like istockphoto, or to use something like the Copyright Clearance Center.
SoB: Why should bloggers use a Creative Commons license on their blogs, journal articles, and other creative works?
JW: Because it removes all this uncertainty up front and in advance, and replaces it with “yes, you can, as long as you play by the rules” – and gives the author the chance to set the rules, within some boundaries. CC licenses make it easy to cut and paste, to fisk, to comment, to engage in a dialogue without anyone worrying that an obnoxious copyright lawsuit is lurking around the corner. We’re a standardized, free, and open way to make sure we can transfer knowledge as openly as we transfer documents, and scientific knowledge really needs to be transferred as fast, and as broadly, as can be.
A huge thanks to John and Michael for helping to shed a bit of light on copyright and blogging, and to Adrian for helping with the questions themselves! Finally, thanks to Bora Zivkovic for putting us in touch with John.
We hope to have our libel post up in the near future, and are actively looking for experts in this area. If you or someone you know is an expert in libel law, you can contact us through the blog, twitter, or via email (saunders.travis at gmail dot com).
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