June 20, 2006

Four case studies in copyright and intellectual property rights

Follow-up to More about how you can use copyrighted material for free in criticism or review from Transversality - Robert O'Toole

This evening I am co-teaching a session on web publishing with Casey Leaver (Comms Office) as part of the Graduate School Skills Programme. As part of this I cover copyright, intellectual property, with reference to the various channels available at Warwick. I will be presenting the students with four fictional case studies to consider. Each raises interesting questions and difficult considerations. They are detailed below.

I have added my own response to each of the use cases. Although we didn't have much time to discuss them properly in the session, the students seemed to have a good understanding of the principles. Note that I am not a lawyer, and hence you should not take this advice as sanctioning any specific act.

Case Study 1

During her summer vacation, a lecturer in aesthetics visits the Fundacio Miró in Barcelona. It is a very relaxed gallery, with no major security presence and none of the ugly signs that pollute the nearby MNAC gallery with warning of criminal charges to be levied at anyone who breaks the rules. On seeing one of the paintings, the lecturer realises that it could form the basis of a lecture. She quickly takes a photograph of the painting. No one seems to mind. Later she finds an internet cafe, and logs into her module web pages on Sitebuilder at Warwick. She uploads the photo of the artwork, and adds it to the resources page for the lecture in which she plans to discuss the artwork. The page has its security permissions set so that only Warwick staff and students can access it. The image will only be used in teaching of the module.

Has she done anything wrong? If so, what do you think she should have done?

Firstly, is the image actually subject to copyright?

  • As Joan Miró only died in 1983, it is likely that copyright still belongs to the Miró estate, which I suspect means the Fundacio Miró.

Is she then covered by a permitted use?

  • The permitted use for (group) research or (personal) private study does not apply in this case, as she is using the image in teaching.
  • She could argue that she is using the work for criticism or review, but this would depend upon the exact way in which it is used.
  • However, she is using more than an insubstantial part of the artwork, in fact she is reproducing the whole work, although she does not remove the need to refer to the original work.
  • But she may well be infringing upon the Moral Right of the author in representing his artwork through a poor quality copy. Artists seem particularly keen on using this clause to prevent their work being digitised.

However, there is a further consideration:

  • Even if the copy were to be considered as one of the permitted acts, the gallery would almost certainly have imposed as a condition of entry a ban on photography and the reproduction of its works. This is common practice. Galleries are firm in their defence of these contracts.

What then should she have done? I suspect that the Fundacio Miró are quite generous towards the use of their images in teaching. They may well have provided permission to use a good quality copy free of charge or cheaply. The lecturer should have contacted the gallery and sought permission. This would also respect the Moral Right of the artist.

One final point: the image was on an access controlled site, which probably means that she would not have been caught. However, it is not impossible. And furthermore, she really should try to do the right thing.

Case Study 2

A research student attends a lecture on cognitive science by a visiting lecturer from Edinburgh. Many of the colleagues in the student's research network are unable to attend, for either timetable reasons, or because they are at other universities. It all seems very exciting, a new theory about how intelligence is founded upon its extension into materials and tools in the world beyond the brain. The visiting speaker is particularly excited about some new examples that he has discovered that will answer the many existing criticisms of such a theory. He explains that he will very soon be publishing a book that details these ideas in full. He expects this to be the most important book in its field ever to be published. However, despite his excitement, he feels the need to try out some of the ideas with a small number of other researchers. He therefore elaborates upon these new discoveries in his lecture. The research student finds that these ideas fit very well with his own work. He also knows that his colleagues at Warwick and beyond will find new impetus to their research from these new ideas. It offers a chance to really bring together all of these people. After the lecture he quickly finds a computer and writes a blog entry to explain everything that he has learnt. His friends all across the world are able to read about these great new ideas right away.

What will the effects of his actions be? Would you do anything differently?

This in fact happened to me recently. I attended a lecture by Andy Clark, who introduced his paper by saying that he was using it as an opportunity to try out ideas for his new book. I did write a blog entry in response, but was careful not to repeat any of his new ideas. Had I spilled the beans publicly on the web, I would understand him not being too pleased. At the very least it might have discouraged him from revisiting Warwick. Alternatively, I could have written a blog entry with restricted access, although my friends outside of Warwick would not have been able to have read it. I could have communicated with them by other means.

Case Study 3

A lecturer is an active member of a discussion forum hosted in the Warwick Forums system. The forum is open to all members of the university. It is a very popular forum, with people from across Engineering and the Warwick Manufacturing Group participating. Such a diverse collaboration of knowledge and skills often leads to new perspectives on old problems. One particular problem seems to be quite intractable, so the lecturer posts a long description of it on the forum. She already has some possible solutions, but just needs a little input from elsewhere. The tactic works, an MSc student offers an unusual insight that inspires a solution from the lecturer. A journal paper follows, along with, a year later, an unusual email from the exams secretary. The student has been accused of plagiarising from the journal article. The plagiarism seems to be quite clever, but the ideas are the same and a few sentences are shared. When the lecturer looks at the student's essay, it appears that some of it has been copied from the forums discussion.

What factors should be considered in resolving this? What could have been done differently?

Ad-hoc collaborative work is not effectively dealt with in law. It would be difficult to identify a single 'author' of the set of ideas that emerge from the discussion. Perhaps copyright could belong to the institution within which the discussion happened? Cases like these are a matter for sensible judgement and good practice. One aspect of that good practice is rigorous attribution. Clearly the student's mistake was in not attributing the ideas to the contributors in the discussion. However, many people are unaware of the conventions for referencing such objects. My attitude would be that the student got it wrong, but that it is not a serious case.

Case Study 4

A researcher regularly writes short articles and publishes them on her blog using Warwick Blogs. The articles usually attempt to make some connection between her work on the history of the Middle East and current events in the news. The blog becomes a popular read for many specialists in the area. After some time, the lecturer is contacted by a friend who asks how she managed to get her work published on the web site of a slightly extreme Islamic student's organisation in France. She is baffled. On looking at the url, she finds a blog like web site, mostly in Arabic, with one of her articles sitting in the middle of the page, surrounded on all sides by arabic, of which she can decipher nothing. The article is about the Arab Revolt of 1916, and the coordinated attacks on trains that were an essential part of it. She is a little concerned, as she has absolutely no idea what kind of context her work is being presented in. It is attributed to her, with a url link to her blog, but it seems to be a very different article when presented out of its original context.

How do you think this happened? Do you think it is likely? Has anything illegal been done? How would you respond?

Again new technology is almost out–stripping our conventional academic practice. When an author publishes a blog entry with public permissions, it can automatically appear on other web sites within an agregation of entries. Warwick Blogs automatically creates RSS XML feeds that enable this kind of syndication. This might be a breach of the author's Moral Right. It might also be a breach of Database Right (which could possibly be used to stop other people from abstracting individual entries from an RSS feed). However, I suspect that it would be a tricky case to prove, given that the author is using a system that offers a public RSS feed.

Something similar to this has in fact happened to me. One of my blog entries appeared on an Arabic language web site, I don't really know the context as I cannot speak Arabic. But I have absolutely no reason to believe that it isn't one of the vast majority of worthy Arabic sites on the web. So I really do not mind, and in fact am quite curious as to what they find interesting in my work.

Has anyone got any other opinions on these cases?

- 2 comments by 2 or more people Not publicly viewable

  1. John Dale

    I wait with interest to see what answers you provide to these case studies!

    20 Jun 2006, 17:38

  2. Robert O'Toole

    OK, i've updated the entry with my opinions. They are based on my recent research, but are just my best attempts at understanding the law.

    20 Jun 2006, 23:49

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