seeking advice regarding research on photo-sharing websites
Dear Air list members, I'm a Master's degree student in Sociology at the University of Geneva and I'm preparing an article based on my graduation project about online photography, and I'm writing to ask some advice regarding the "ethical" side of such a publication. My research consisted mainly in content analysis of comments written on a photo-sharing website called TrekLens.com. The website's content, so all photos and comments, are freely and publicly accessible to any visitor of the site, with no need for a login or account to view the photos or read the comments. In my analysis, all comments have been anonymized and no usernames are visible. Furthermore, the few examples I give in the final text are hardly identifiable, since they're only small bits from comments and not the entire comments in themselves. In terms of privacy or harm, I don't think I'm running any risks. I have also included a brief description of the site and its tools, features and functionalities. However, the website's terms of use forbid any use of its content without written consent from the webmasters, even if all content is completely public: http://www.treklens.com/tou.php My question is: will I breach any ethical or legal rules if my article is published and do I, by all means, need the moderators' written consent? My doubt in all of this is the possibility of refusal by the webmasters... All advice will be of great value and most warmly appreciated! Thank you all in advance, Nuné Nikoghosyan
Um - was the only reason you didn't ask for the permission explicitly required by the terms of use was fear of rejection and thus a real crimp (to put it mildly) in your project and publication? Your efforts to anonymize content and sources are sensible enough - but from a legal point of view (I think), you're bound by the terms of use, especially on the presumption that you agreed to these when you (presumptively) signed up for an account in order to gain access to the site's contents? There may be more than one experienced researcher on the list who will provide us with good arguments for ignoring a terms of use agreement, at least when coupled with efforts such as your own to meet important requirements for protecting privacy, etc. Whether those arguments can override an ostensible agreement to the terms of use will be interesting to explore. BTW: there's an interesting and perhaps somewhat parallel debate at the moment in climate circles as to whether a scientist/journalist's deception - which brought forward important documentation of the plans and funding sources of a climate-change-denying organization called the Heartland Institute. <http://readersupportednews.org/news-section2/312-16/10159-the-gleick-affair -justice-or-deceit-at-the-heartland> It is striking to me to see the several responses to the effect: the ends do not justify the means. Looking forward to hearing others' suggestions and insights. - charles ess On 2/26/12 3:53 PM, "Nune Nikoghosyan" <nunenik@gmail.com> wrote:
In terms of privacy or harm, I don't think I'm running any risks. I have also included a brief description of the site and its tools, features and functionalities. However, the website's terms of use forbid any use of its content without written consent from the webmasters, even if all content is completely public: http://www.treklens.com/tou.php
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.
Dear Charles, Dear Jeremy and all those who have replied to me off-list, Thank you all for your kind advice and consideration! I'd just like to clarify one point: the site's content is completely public, freely accessible to all visitors, with no need to create an account. All you'd need in order to read (and, eventually, analyze) any comments is to open the page and click on a photo. It's similar to viewing a "public" photo on Flickr and reading the comments that follow, with no need to sign in. So I didn't need to create an account for accessing the material, nor did I need a permission for such an access. The (ethical) question poses only now when it's about publication. Thanks again, Best regards, Nuné Nikoghosyan On 26 February 2012 20:19, 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.
Dear Nune, Unfortunately I can't remember the reference for you (someone else might), but I remember reading in a book about a researcher who analysed a publicly accessed site where women with breast cancer shared their experiences. Although no password was required, the researcher felt ethically bound, if I recall correctly, to contact those on the site about what was being analysed because it was dealing with a sensitive issue. I therefore believe that care must be taken depending on the content of what is being researched. Nothing is ever black and white with Internet research. This area of ethics and the Internet is ongoing and given the technology is still relatively new, a lot more discussion will ensue. I would also query if there are any copyright issues regarding people's posted photographs if you are going to reproduce them as well as their comments. Presumably your academic institution will guide you on this. Having said that I have been analysing comments on a publicly accessible archived blog discussion for my PhD research and have interviewed both the blogger and moderator as they brought insightful information to my research - particularly regarding my interpretation which was often quite different to how they saw things. I felt this added objectivity to my research. Good luck with your research. Kind regards Philippa Smith PhD Candidate Institute of Culture, Discourse & Communication AUT University Auckland NEW ZEALAND -----Original Message----- From: air-l-bounces@listserv.aoir.org [mailto:air-l-bounces@listserv.aoir.org] On Behalf Of Nune Nikoghosyan Sent: Monday, 27 February 2012 11:05 a.m. To: Jeremy hunsinger; Charles Ess Cc: Air list Subject: Re: [Air-L] seeking advice regarding research on photo-sharing websites Dear Charles, Dear Jeremy and all those who have replied to me off-list, Thank you all for your kind advice and consideration! I'd just like to clarify one point: the site's content is completely public, freely accessible to all visitors, with no need to create an account. All you'd need in order to read (and, eventually, analyze) any comments is to open the page and click on a photo. It's similar to viewing a "public" photo on Flickr and reading the comments that follow, with no need to sign in. So I didn't need to create an account for accessing the material, nor did I need a permission for such an access. The (ethical) question poses only now when it's about publication. Thanks again, Best regards, Nuné Nikoghosyan On 26 February 2012 20:19, 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/
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 historians’ 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/
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 historians 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/
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participants (6)
-
Annette Markham -
Charles Ess -
Dan L. Burk -
Jeremy hunsinger -
Nune Nikoghosyan -
Philippa Smith