Copyright Principles in Action

X. Digitized Images

Putting aside works originally created on the computer (computer art), digitized images may be made by scanning slides (which may be original photos or which may themselves be reproduction of original works of art or of licensed (permitted) copies of works of art in books). Digitized images could also be created by using digital cameras. Such images can be projected, printed, transmitted, manipulated, and further copied. But remember that even the scanning or digital photographing itself is the making of a copy.

"Thumbnail images" are small (stamp-sized), low-resolution images used primarily in on-line library or gallery catalogues. Use of thumbnail images should be a fair use. Even though 100% of the image is utilized and the original work is highly creative, the purpose is educational (a library catalogue for a non-profit educational institution) and there will be no adverse impact on the copyright-holder’s market given the tiny size and poor resolution.

Instructors in Art History or humanities courses, understandably, often wish their students to have (either in their course packet or available on a web site) access to the actual images they are studying. Of course, museums and art book publishers and photographers who hold copyright wish to commercialize their rights by selling books or slides for the students to use. Thus, there is a conflict when unpermitted copies are made. A fair use analysis would proceed somewhat as in the preceding paragraph except that with the possibility of downloading and color printing, the market impact factor could be weighted against the university.

Helpful precautions (but which cannot be guaranteed to create a successful defense) would include making the web site accessible only by students enrolled in the class (by password and/or dedicated server used only on the campus intranet), displaying a prohibition against making copies larger than a specified size, restricting use of copies to course projects and papers and personal study, and displaying the name of the copyright holder.

It would seem that placing the image copy on a web page or making multiple hard copies for the class would go well beyond the library’s "individual scholar" exemption under Section 108(d) and (e). In any case, pictorial and graphic works are excluded from that section’s exemption unless they are merely "adjuncts" (e.g. graphs or illustrations) to a literary work.

Nor would it seem that including the images on a class web page would fully satisfy the parameters of the distance education exemption or the face-to-face-instruction exemption, both under Section 110. While the instructor could display a lawfully acquired copy of the original work to directly to the students during the class, the digitized copy may not have been what the University purchased or be within a license given to the University. However, if the digitized copy was authorized, using PowerPoint (or some similar projection software) to show it to the class "live" would be allowed under Section 110(1). However, when the image is simply put on a web page for the students to access outside of class (i.e. not in the course of "face-to-face" instruction), the defense would have to shift to Section 110(2). Here, as explained in Part VI, the problem is that some of the students will likely receive the Internet transmission individually and at home rather than in a "classroom" setting. Hopefully, Congress will someday soon remove these outdated limitations on distributed learning activities.

The Conference on Fair Use (CONFU) has developed a proposal for recognizing fair use in reproducing images. However, many library associations did not endorse the proposal and its status as a widely supported and influential document is in some doubt. The CONFU proposal would allow "educational use" by faculty and students for learning and reviewing and even for non-real-time access and reproduction in homework assignments, term papers and personal portfolios providing access was limited to those students enrolled in the course. The digitized image must be made from a copy "lawfully acquired" (but apparently not from a "commercial compilation") and the university must immediately attempt to learn who holds the copyright and seek permission for all subsequent uses or retention (even of "thumbnails"). The CONFU proposal allows a five-year "transition period" while the institution seeks permission as to holdings in its current collection. Given the provenance uncertainties, the difficulties in tracking down some copyright holders, the huge number of images already held (usually in the form of slides purchased from commercial vendors or donated by faculty and supporters), and the limited staffing in most university libraries, five years – though seeming generous at first glance -- is an unfeasibly short time. While the CONFU approach is more lenient than statutory fair use in some ways, the onus of seeking permissions has prevented enthusiastic institutional backing. In the meantime, instructors and librarians unfortunately appear to be limited to searching for the "right" comprehensive text (which includes all or most of the desired images as authorized copies) and to using their lawfully acquired slide collections.

In the case of slide photographs made of original works of art, it could definitely be argued that the fixation on photographic film is not a creative act since the artist (not the photographer) did the creating. However, there are two problems with this position. First, there would still be the copyright holder of the original work to contend with (either the artist or his/her assignee) unless the original work has fallen into the public domain through the passage of time. Second, photographers will argue that their choice of lighting, film and shutter speed, camera angle, and development/printing process are all "creative" steps in producing the slide. The cases go both ways with the later, lower court, authority holding no protection for art slides. Compare Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99 (2d Cir. 1965)(protected) and The Bridgeman Art Library, Ltd. V. Corel Corp., 36 F.Supp. 2d 191 (S.D.N.Y. 1999)(not sufficiently creative to be protected).

Even if the University owns a work of art (and can thus can publicly display it in the campus museum or a ceremonial room where it is located), it does not automatically follow that it can make and distribute copies of the work (e.g. on a poster or on a web page). If it has been assigned the copyright, it can. If not, it will need permission from the copyright holder. See generally, "International Copyright, Digitization of Images and Licensing between Museums, Artists and Publishers" 5 Ind. Int’l & Comp. L.Rev. 393-423 (1995).

To read a hypothetical situation (and its analysis) on the subject of digitized images, click on Hypo No. 3.

XI. Bootleg Software

Blatant copying via the "copy" command is clearly infringing when copyrighted (or patented), non-public domain software is involved. The fair use defense will almost certainly not apply since the work is creative, 100% is copied, and the impact on the market is quite clear. If the software copied is more general purpose (e.g. word processing, accounting, web crawling) even the first factor of "educational purpose" is very weak (or possibly even negative).

Employees, including student employees, tasked to work with University computers can visit vicarious liability upon the University by such infringing acts. The institution would probably escape liability as a contributory infringer if the individual employee were running a covert bootleg production-marketing operation, but if the illegal copies were merely being used on University machines for University purposes, the University would very likely be held responsible even if supervisors and administrators somehow were ignorant of what was happening.

The license from the copyright holder will specify whether (and how many) copies can be made, if any. Typically the licensee may make an archival copy to guard against inadvertent deletion or accidental (power surge?) loss. Many licenses today allow an application program to be placed on a server where a pre-specified number of intranet users can use it simultaneously. And some licenses today will allow a second copy to be loaded onto a home computer of the regular user of the University computer provided both copies are not used concurrently in recognition of work-at-home and telecommuting activity.

While some software can be acquired over the Internet, if the copy on the remote site is a bootleg copy, it cannot be "laundered" when someone at the University acquires it even if they pay for it. In other words, a copy of a bootleg copy is still a bootleg copy even if it came over the Internet. The preceding statement does not apply to "freeware" or "shareware", although such products may sometimes be included in larger compilations which themselves are copyrighted.

If students make unauthorized copies of copyrighted software while using the University’s computers, there should be no liability on the University (though the best practice would be to post copyright law notices (similar to those libraries post near their photocopying machines) near lab, studio, library, and student union computers). However, no University staff person can make (or encourage or knowlingly allow to be made) copies for students even in an instructional setting if the University’s license does not permit that. If it comes to the University’s attention that bootleg software does exist on its mainframes, servers, or stand-alone computers, the University will (usually through the offices of UO Computing Services) take steps to remove it and substitute a legal (appropriately licensed) copy. An investigation may follow to ascertain who loaded it (and possibly to impose appropriate sanctions).

For a discussion of selected cases concerning copyrights in software and what constitutes infringement, click on Appendix H. To read a hypothetical situation (and its analysis) involving bootleg software, click on Hypo No. 4.

... Continue to Part XII