To my knowledge, the *only* countries that have fair use are the United States and Isreal. Many other nations have specific statutory exemptions for scholarly uses (part of what some Commonwealth nations call "fair dealing" -- not to be confused with fair use) but by no means all, and the extent of the exemption will vary by country. I'm a little surprised that Denmark doesn't have a scholarship exemption, but even within the EU/EEA there is pretty wide variation. DLB
I recently ran into a similar problem, so I figured I'd add to the discussion by way of (long-winded, sorry) example. My example is more relevant to legal issues of copyright and fair use in scholarly publishing, versus the other issues Charles, Phillipa, and Danielle have mentioned.
For an article I was writing, I wanted to use some images I found in various places on the web to illustrate network analysis techniques. I considered these images to be necessary to make my argument. I reasoned that as academics, we need to be able to use whatever evidence is necessary to support our points. We generally accept that written materials can be quoted, as long as we cite the source and follow some other guidelines. In theory, we should be able to use images in similar ways, but this has remained a challenge.
Depending on the laws of the country in which one is publishing, the use of images/photos in academic works might fall under the principle "Fair Dealings" or "Fair Use." in very basic terms (and referring to the specific U.S. concept), this means that if my purpose is to comment on, parody, or critique copyrighted material, and the use would be limited and transformative, I do not need to seek permission from the copyright owner. Fair use is a defense against claims of copyright infringement. (There are good overviews of the concept online--I use Stanford University and Columbia University copyright sites)
The International Communication Association recently published a code of best practices for fair use in scholarly research in communication: http://www.centerforsocialmedia.org/fair-use/related-materials/codes/code-be... . This best practice document is not a legal safeguard, but outlines some excellent considerations. It is the most comprehensive document available (to my knowledge) on the use of media in scholarly work.
Here are the key points from that document I found helpful in determining that I was using the images fairly. They go further than any other specifications for fair use, but again, they're based on the U.S. principle of fair use, so these points may not apply in other countries.
1) Previously, it has been assumed that if use is fair in the classroom, that doesn't mean it's fair for scholarly publications. The ICA guidelines argue differently, noting that in communication scholarship, fair use principles extend to published works, not just education in the classroom: "If a use is fair in the course of scholarship, then it is fair in the publication and distribution of that scholarship by any means, including publishing and media distribution, and in the archiving of that scholarship." They go further to note that fair use is not medium specific.
2) "Scholars may invoke fair use to reproduce copyrighted material where it serves to explain or illustrate their scholarly insights or conclusions about communications in relation to social, cultural, political, or economic phenomena. Generally speaking, such uses transform the material reproduced by putting it in an entirely new context; thus, a music video clip used to illustrate trends in editing technique or attitudes about race and gender is being employed for a purpose entirely distinct from that of the original, and is typically directed to an entirely distinct audience from that for which it originally was intended."
3) Fair use applies to the use of images as much as the use of text, despite common misunderstandings to the contrary. This is an important adjustment to the pre-digital era assumption that multimedia communication forms should be treated differently than textual forms of quoting. "Fair use is in wide and vigorous use today in many professional communities. For example, historians regularly quote both other historiansÂ’ writings and primary textual sources; filmmakers and visual artists use, reinterpret, and critique copyrighted material; scholars illustrate cultural commentary with textual, visual, and musical examples. Equally important is the example of commercial news media. Fair use is healthy and vigorous in daily broadcast television news, where references to popular films, classic TV programs, archival images, and popular songs are both prevalent and routinely unlicensed."
Based on these arguments from the ICA committee on fair use, and my further study of Fair Use principles, I was confident that if I were publishing in a U.S. outlet, I could make a solid argument for using the images without seeking permission. Even so, the area is gray and likely to remain so for many years. While some publishers regularly reproduce graphics under the principle of fair use, others refuse any use of graphics without copyrightlicense.
Well, at the end of the day, because I was publishing in Denmark, my research and reasoning didn't apply. Turns out Danish law does not recognize fair use, so copyright permission must be approved in writing for any image I want to use. This rule applies regardless of where the images come from. So I cut all the images from the article.
I don't know much about Swiss copyright law. I do not believe Switzerland has anything like a "Fair Use" principle. But there may be provisions that specify the (unencumbered) use of copyrighted materials for educational/academic purposes.
Annette
***************************************************** Annette N. Markham, Ph.D. Visiting Scholar, Department of Communication University of Arizona, Tucson
amarkham@gmail.com http://markham.internetinquiry.org/
Co-Editor, International Journal of Internet Research Ethics http://www.ijire.net <http://www.ijire.net>
On Sun, Feb 26, 2012 at 12:19 PM, Jeremy hunsinger <jeremy@tmttlt.com>wrote:
Well, I think he should ask permission, but mostly because it is the ethical option. I expect that if he explains his use is non-profit and research oriented, he'll be fine.
I think that I would suspect that he would need to seek a lawyer's opinion as to whether the terms of use actually apply to his case at all, it is not always clear that they are enforceable across borders, or that all of there terms are legal across borders. I am not a lawyer, so i am just skeptical about it. _______________________________________________ The Air-L@listserv.aoir.org mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org
Join the Association of Internet Researchers: http://www.aoir.org/
_______________________________________________ The Air-L@listserv.aoir.org mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org
Join the Association of Internet Researchers: http://www.aoir.org/
-- School of Law University of California, Irvine 4500 Berkeley Place Irvine, CA 92697-8000 Voice: (949) 824-9325 Fax: (949)824-7336