More about how you can use copyrighted material for free in criticism or review, 16/06/06, Transversality

June 16, 2006

More about how you can use copyrighted material for free in criticism or review

Follow-up to Neat tricks for dealing with copyright? from Transversality - Robert O'Toole

In a previous entry I documented some of the lessons that the E-learning Advisor Team learnt from the BUFVC course on copyright. We found the permitted uses of copyrighted material (that is, what you can do without permission) to be much wider than we had previously assumed. I am seeking further clarification, in particular of the permitted use of copyrighted material for the purposes of criticism and review, as this may well cover many activities within the Arts Faculty.

Note: I am not a lawyer. You should not regard this article as providing perfect and sufficient advice.

Permitted use for criticism and review

British copyright legislation includes some significant protection of what could be conceived as "free speech". The use of copyrighted material for criticism and review is an essential component of this.

Imagine that a theatre company puts on a production of the Merchant of Venice that presents Shylock visually in a way that could be considered to be anti-Semitic. Under the normal contractual and copyright terms the company could forbid the audience from distributing images of the production that demonstrate this feature. A journalist covering this story would be prevented from proving the alleged anti-Semitic visuals to the public by reproducing a photograph of the production. The debate concerning the production and anti-Semitism in Shakespeare would be to some extent weakened. However, UK copyright legislation allows the journalist to reproduce such a photo for the purpose of criticism and review, thus allowing the public to make up their own minds on the allegations of anti-Semitism.

Clearly the legislation is vital in such an extreme case. But it is also intended as a general support to activities of criticism and review. It supports all such open debate, and is thus essential in supporting the very essence of arts education and research.

Limitations on fair dealing for criticism and review

We can therefore safely reproduce copyrighted materials if such an act is essential to criticism and review. There are, however, restrictions. The first of these is stated clearly by Raymond A Wall in his very useful book Copyright Made Easier:

Copying or quoting a sufficient extent or significance to render consultation of the original unnecessary or less necessary would be unlikely to be judged 'fair' in court. Wall 2000, p177

There are two aspects to this limitation. The most easily understood of these is the limitation on the quantity of material copied. Most people are familiar with the idea that they cannot copy an entire book, play, movie, song or other such production. There are commonly accepted definitions of this regarding the quantity that can be copied from a book. However, this is in fact much less important than the second aspect. It isn't the quantity that really matters, it is the significance of the copied excerpt.

Consider if a reviewer were to reproduce a paragraph from a book. If that paragraph contained a statement of the purpose of the book, then potential readers would still have to read the book. If the paragraph contained the conclusion or most important piece of information in the book, the readers would no longer need to consult the original. This would then not be protected by the permitted act of criticism or review.

Note that "significance" is entirely a matter of judgement, until the damage has been done. Any use of copyrighted material in criticism or review may be challenged by the copyright holders in court. There is therefore always a risk in using this defence.

I have a possible permitted act of criticism or review that I am investigating. Consider if you took a photo of an artwork and reproduced that image as a digital image online. If the digital image were of a significantly low quality or size, then it would not render seeing the original unnecessary. Is this safe?

Protecting the moral rights of the author

Whenever we use a copyrighted work for criticism or review, we are still compelled to protect the 'moral rights' of the author. For example:

Any reproduction must be accompanied by sufficient acknowledgement. Wall 2000, p177

We must also ensure that we do not distort or misrepresent the author or their works. This limitation is quite significant. Authors can argue that the presentation of an edited or extracted part of their work presents it wrongly. Artists frequently use this moral right to object to their work being presented on screen. Again this is a matter of judgement. Our best defence is to seek advice from the author as to what is acceptable, and to explain in the criticism or review that the presentation of the artwork in the reproduced sample is only a partial representation of it.

My understanding of the use of copyrighted material for criticism or review still leads me to believe that it allows much more flexibility to arts education than I had previously believed. However, such activities face risks that have to be considered and managed carefully. We need to ensure that users of our web publishing tools are sufficently guided as to these risks and the processes that they must follow in order to lessen them.

Robert O'Toole : 16 Jun 2006 11:57 | Tags: Copyright E-Learning Warwick University | Comments (0) | Report a problem