Before I delve into specific topics related to virtual reality, it is worth acknowledging how copyright works. There are three key reasons for this. Firstly, copyright legislation does not specify screenshots, nor screen captures. Secondly, I am going to need to illustrate some points in this blog with screenshots and, possibly, with short screen captures, and therefore it makes sense to cover how that works. Thirdly, this is also relevant to academic publications, such as articles, book chapters and books.
The purpose of this post is, however, not to examine copyright legislation in detail, nor should you think of the content of this post as legal counsel. This post is written from a Finnish perspective, primarily in reference to Finnish legislation. My familiarity with the laws of other jurisdictions is much more limited and I am well aware that I might be wrong about some matters. Overall, the purpose is to address how copyright is relevant to my line of work.
Screenshots and screen captures
I think it is best to start with explaining what screenshots and screen captures are and only then address their status in relation to copyright. According to the Oxford English Dictionary, the former (OED, s.v. “screenshot”, n.) is related to computers and defined as:
“A photograph or … a digital image of all or part of what is displayed at a given time on a … computer screen[.]”
It is further specified that it (OED, s.v. “screenshot”, n.) typically serves a particular function:
“[It is] often used to illustrate how to use a particular program, website, etc.”
The latter (OED, s.v. “screen capture”, n.) can be understood the same way according to the same dictionary:
“The action or process of taking a screenshot[.]”
They are almost the same, albeit the latter has more to do with the how screenshots function, capturing what is displayed on a screen, in its entirety or only in part.
What is interesting about screenshots is that they are understood as photos or images. This is an important point to make and I will return to it in the context of copyright legislation.
Video captures
I believe it is also useful to define what video captures are and only then address their status in relation to copyright. According to the Oxford English Dictionary, they (OED, s.v. “video capture”, n.) are related to videography:
“The process of recording scenes as digital video; the capacity to accomplish this[.]”
The examples listed under the entry in the dictionary clarify the definition. It can be understood as the capacity to capture a scene in video format, which is the key feature of video cameras and any other devices that are capable of the same functionality. However, it can also be understood as capturing what is displayed on a computer screen in video format.
Copyright
It is also worth explaining what copyright means, before addressing copyright legislation. To give you an everyday definition, it (OED, s.v. “copyright”, n.) is all about who has the right to copy something, as explained under the relevant entry in the Oxford English Dictionary:
“The exclusive right given by law for a certain term of years to an author, composer, designer, etc. (or … assignee), to print, publish, and sell copies of [an] original work [of the rights holder.]”
Note that, in addition to being all about the right to copy something, this right is exclusive to its holder or holders, which may be a person or persons, as well as a entity, such as a company, or entities, such as companies, and in effect from a certain date, typically the creation, publication or performance, to certain other date, after which this exclusive right to copy is no longer in effect.
Copyright is very familiar to me due to my background. People many know me as a lecturer, but I am also a photographer. It has been a hobby for well over a decade by now. Occasionally it has also been a part-time job. It is no longer the case, because there simply is not enough money in it, albeit I am still happy to license my photos, no problem.
In research, my approach to copyright is that I prefer using my own materials . For example, instead of using someone else’s photos, I put in the effort to use my own photos. It might not be the most convenient option, but that way I do not have to ask someone else if they are willing to let me use their photos, nor wait for them to answer. They may also say no, which then means that I need to ask someone else, who may also say no. Therefore, putting in the effort myself makes most sense to me.
This is also my approach as a teacher and a supervisor. Using your own work means that you do not have to rely on anyone else, nor deal with them in the first place.
Complications
To be clear, copyright is a bit more complicated than figuring out who has the right to copy something. For example, photos are works protected by copyright, yet they may include other copyrighted and/or trademarked works, as well as people and property.
What people are rarely aware of is that you can copy copyrighted and trademarked works attributable to others, in their entirety or in part. Similarly, you can include people in your own copyrighted works. It is the purpose of creating your own work and the way you publish or present it publicly that matters when assessing whether your work infringes on someone else’s copyright by including them in their entirety or in part in your own work or on other related rights, such as people’s right to their likeness and property owners’ right to the likeness of their property.
Photos are copyrighted themselves, yet they often include other copyrighted works. This does not mean that they automatically infringe on others’ copyrights. What matters is how they are used. This what I mean by purpose.
To give you an example, think of how the media works. News often rely on photos and videos that often depict copyrighted works, as well as people and property, yet they do not infringe on others’ copyrights, because they engage in what is known as editorial usage.
It is very important to understand that editorial usage is distinct from commercial usage. In fact, it is fair to say that editorial usage is non-commercial usage.
I acknowledge that this distinction may seem confusing and even nonsensical, considering that most media outlets are businesses that do seek to make money. It may therefore seem like they engage in commercial usage.
To appreciate the distinction, it is crucial to understand that editorial usage is not limited to news, albeit it is the most common context for it. Instead, it actually means any kind of usage that is as is, regardless of whether or not someone makes profit from it. This allows the inclusion of others’ copyrighted works, in their entirety or in part, as well as people and property on photos and videos, without requiring permissions, i.e., licenses, from others to copy their works, their likeness or the likeness of their property.
Editorial usage should not be confused with, nor referred to as commercial usage, in which the usage is not as is. Its purpose is to advertise or promote something, such as product or a service, or to act as a product that is sold. This does not allow the the inclusion of others’ copyrighted works, in their entirety or in part, as well as people and property on photos and videos. Permissions, i.e. licenses, are required from the rights holders and the people involved.
There are, of course, many jurisdictional and contextual differences that must be taken into account. One must address the purpose case by case.
In practice this distinction means that you cannot, for example, sell a photo of a painting or another photo, nor use that photo of a painting or another photo to promote advertise or promote something. Why? For the simple reason that you are considered to be copying an original in order to sell it and profit from that, or to gain people’s attention for your or someone else’s benefit.
This also applies to people. You cannot sell photos of people, for example prints, because you are making use of their likeness, for your benefit. You cannot use them for advertising, nor promotion either, because you are, once again, using their likeness for your or someone else’s benefit.
Some jurisdictions also apply this to property, such as buildings. In Finland, this not the case. Using the official, but nonetheless unofficial English translation of the Finnish copyright act (404/1961), it is clearly stated that “[a] building may be freely reproduced in pictorial form.” This makes sense, considering that the exterior of a building is always in public.
This does not, however, mean that having a building in the background of a photo is therefore entirely unproblematic in the Finnish context, because, to my understanding, you cannot use the photo for advertising or promotional purposes in a way that, for example, gives the impression that the owner of the property somehow endorses what is being advertised or promoted.
In summary, editorial usage is completely different from commercial usage. The world as we know it would not work if media outlets, such as newspapers, would have to ask permission from others every time that a photo or a video includes copyrighted and/or trademarked works, or people, or property.
Creative Commons
This distinction between editorial usage and commercial usage is relevant to Creative Commons. This model includes licenses that restrict uses of materials for commercial purposes.
The definition of commercial purposes applied under this model recognizes the distinction between editorial usage and commercial usage, but it is not exactly the same as commercial usage. While the licenses themselves are vague about this, this is specified in ‘A Journalist’s Guide to Creative Commons’, authored by Zac Crellin and Jennryn Wetzler.
It is acknowledged (4) in the guide that many media outlets are clearly for-profit, yet it is possible for them to copy others’ works, in their entirety or in part, even if they are published under Creative Commons non-commercial licenses. This is exemplified (4) by how this can be permissible as long as the for-profit media outlet copies such works, or parts of them, without specific intent for commercial gain.
In practice, this means that it is possible to copy such content, but the underlying business model must remain the same. It is recognized (4) in the guide that many media outlets rely on subscriptions, i.e., paywalling their content, and include advertising on their webpages, but this does not necessarily mean that they cannot make use of any works that are licensed under the Creative Commons model and marked available only for non-commercial purposes. Instead, it is expected that media outlets treat such materials in a way that does not seek to specifically gain from copying that content, for example by paywalling that content or selling ads for that content.
This does not, however, mean that media outlets can simply copy existing works published under non-commercial Creative Commons licenses if they meet the aforementioned criteria. Instead, they must always check how that license is specified beyond the general license terms, as acknowledged (4) in the guide.
It is also worth noting that it is possible to publish a photo or a video under a Creative Commons license, even one that allows for commercial usage, while incorporating others’ copyright protected works, people, property and trademarks into that photo.
This is possible because the Creative Commons licenses include notices. Firstly, compliance with the license terms is not expected when the usage permits it. This means that various exceptions and limitations enshrined in copyright acts of various jurisdictions are always given priority, by fiat. Secondly, it is crucial to understand that while the work itself is published under creative commons, what is incorporated in the work must not necessarily adhere to the specific Creative Commons license for that work. This is how this model acknowledges editorial usage. For example, it is possible to take a photo of a copyright protected statue and license that photo under a Creative Commons license, because as long as that photo is used as is, for editorial purposes, it does not infringe upon the rights held by the sculptor as the author of that statue. Similarly, it is possible to publish photos that depict people, property and trademarks, without infringing on any rights as such, as long as that photo is used as is, for editorial purposes.
It is also worth specifying that that the first notice also permits academics to publish their works, i.e., articles, book chapter and books, under a Creative Commons license, even if their works contain copyrighted works, in their entirety on in part, inasmuch as the various exceptions and limitations mentioned in that notice permit it. This is because Creative Commons is merely a license model that must always be aligned with and adhere to the exceptions and limitations included in copyright acts, just like any copyrightable works.
In summary, while it is important to understand how Creative Commons licenses work, it is more important to understand how copyright works and for that you need to know how the various copyright acts work. It is crucial to know the exceptions and limitations, not because it is a matter of erudition, but because they are indeed exceptions and limitations to the authors’ right to copy. Think of it this way, copyright grants the authors exclusive right to decide who gets to copy their works, making it their prerogative, whereas the exceptions and limits specify where this right does not apply and to what extent they do not apply. In other words, the author is given all the power to decide on …, except on …, …, …, and … when it comes to copying their works.
To give you an example, the author of a copyright protected work can claim that your use infringes upon their copyright, because they hold the exclusive right to copy. However, there are many exceptions and limitations that specify when this right does not apply, i.e., when it is not a right in the first place.
There are many jurisdictional differences that specify what those exceptions and limitations work. However, the bottom line is that the exceptions and the limitations define when one does not infringe upon someone’s copyright. This does not protect you from being sued for copyright infringement, but, knowing the law, what those exceptions and limitations are, do protect you in the court of law.
Software
Computer programs are also typically copyright protected and, in some, ways more protected than some other works. For example, copying copyrighted works for personal use is fairly permissible in Finland, but computer programs are a notable exception.
To give you an example, a little known fact is that fonts are considered computer programs. The glyphs, what people might call letters, are not copyrightable as such, because they are simply too alike, no matter how ornate they are. This is why there are many fonts that appear indistinct from one another.
To my knowledge, Germany is an exception in this regard. If my memory serves me, fonts are considered computer programs, but their typefaces, that is to say the underlying designs and not the digitized font forms, are protected by design for up to 25 years.
It may also come as a surprise to you that only some maps are copyrightable in Finland. In summary, if the map is too plain, such as a locator map that uses a common color scheme, it is not considered a copyright protected work. This is interpreted in a similar manner as the glyphs. Therefore, more detail is needed for maps to be considered original enough to enjoy copyright protection.
Most copyright legislation that pertains to software has to do with copying and running programs. The relevant laws do not, however, cover who has the right to works of art produced in conjunction with running those programs. It is not specified who has the copyright to screenshots and video captures of computer programs.
The lack of clarity on this issue is telling of what is valued in society. The Finnish copyright act (404/1961, 1 §) indicates what enjoys copyright protection:
“[F]ictional or descriptive representation in writing or speech, a musical or dramatic work, a cinematographic work, a photographic work or other work of fine art, a product of architecture, artistic handicraft, industrial art, or
expressed in some other manner.”
As already discussed, it is also noted that (404/1961, 1 §):
“Maps and other descriptive drawings or graphically or three-dimensionally executed works and computer programs shall also be considered literary works.”
What is worth noting here, from both quotes, is that art is thought to be principally linguistic or visual. The list is kept open by noting that expression can be conveyed also in other ways, but this does give the impression that some forms of art are more worthy than others.
Interestingly, maps are lumped in with descriptive two-dimensional drawings and three-dimensional designs and they are considered literary works. Computer programs are also considered literary works. In other words, both are thought to be linguistic, as opposed to visual.
As computer programs are thought to be linguistic in form, likely due to the notion of underlying, executable computer code, the visual aspects of computer programs, such as video games, end up being ignored. They are seen to have literary merit, but not artistic merit, which is puzzling, considering how visually stunning many video games are, often to the detriment of their literary merits.
Screenshots and video captures of software
We may, however, rely on the dictionary definitions, according to which screenshots and video captures are equivalent to photos and videos. In other words, the function the same way.
The only difference between them is the environment which they depict. Analog and digital photos and videos depict the environment, whereas screenshots and video captures depict the computer environment.
One may, of course, object to this distinction on the grounds that it is possible to create photos and videos of computer environments, by which I mean what is presented on a computer screen. In this sense, it is therefore more apt to distinguish them from one another on the basis of where they are created. Photos and videos are created in our human environment, whereas screenshots and video captures are created in a computer environment.
It is, however, also possible to object to that distinction as there is no single computer environment. Instead, there are computer environments. Software is required to capture a still images, i.e., a screenshots, or moving images, i.e., a video captures that depict other software. They therefore function exactly like cameras and video cameras,
It can therefore be argued that the person taking a screenshot or capturing video is the copyright holder, just as a person who takes a photo or records a video is the copyright holder, regardless of what is depicted in the photo or the video, and the device used to take the photo or record the video.
This means then that we must address the purpose of creating screenshots and videos. Is the purpose of a screenshot, i.e., a still image, or a screen capture, i.e., a video, editorial usage or commercial usage?
Quoting
In Finland, and likely elsewhere, the starting point is that if a work is deemed to be protected by copyright, the copyright holder gets to define how that work is copied or presented to the public, in whole or in part, regardless of the way it is copied, for how long the copies last.
Not everything is, however, copyrightable, nor copyright protected. Moreover, copyright does not last forever. For example, the Finnish copyright act (404/1961), which I am basing this post on, does not enjoy any copyright protection.
The Finnish copyright act is also interesting because photographic works enjoy copyright protection, but photographic pictures do not. This does not mean that the latter do not enjoy any protection, but rather that the rights are more limited. The most notable difference is that the former is protected for life + 70 years after the death of the original copyright holder, whereas the latter is only protected for 50 years from the end of the year of its creation.
Screenshots created in Finland therefore are also only protected for 50 years from the end of the year of their creation. I cannot vouch for this though, considering that the copyright act does not mention screenshots.
In addition, photographic picture of a work that is no longer copyright protected does not provide the photographer with any rights. The idea is that you cannot claim any rights on something that is no longer protected by copyright.
In addition to personal use, the most notable exception included in the Finnish copyright act (404/1961, 22 §) is quotation, according to which:
“A work made public may be quoted, in a manner required by proper usage to the extent necessary for the purpose.”
This applies to any and all uses of any works that are copyright protected, regardless of the form and the context. No matter what the copyright holder claims, this is the case. This also includes poetry and song lyrics. You have a right to quote.
This exception is a condensed from what’s stated in the European Union InfoSoc directive (2001/29/EC) article 5(2,d):
“[Q]uotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that … the source, including the author’s name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose[.]”
The part of this having to be lawful is implemented elsewhere in the Finnish copyright act. It is a general point that applies to all cases, so that any copying must always be from something that has already been made lawfully available. In other words, this kind of exception does not apply to anything that has not been published or has not yet been published. In practice, this mean that you simply cannot go through people’s drawers, or hard drives, and copy something that they have created, but not published or performed publicly.
It is also expected that the author’s name and the copyright holder, who are often but not necessarily the same person, is indicated in appropriate manner. The only exception to this is when this is not known or it would be impossible to find out. I have excluded this bit from all the relevant quotations, marking it with …, because it sort of goes without saying that no one can be named if there the name is not known or cannot be found out.
It is, however, worth noting that none of this means that you can use a work as you see fit. You need to have a good reason to use someone else’s work in connection to your own work and use it only to the extent that is necessary.
You cannot include a painting, a photo, an entire poem or lyrics of a song, nor parts of them, not even a line or two, if they are not connected to your work. You can, however, include them, even in the full extent, if they are connected to your and it is necessary to use them to that extent, which may be to the full extent.
What counts as a good reason and what is extent that is necessary is not specified in the copyright act. What matters is that you are creating a work that requires someone else’s work and what you include from someone else’s work is used to the extent that makes sense for your work. That reason is typically criticism or review, as indicated in the InfoSoc directive, but it could be some other use as well.
For example, if you are writing a detailed review of a painting, a photo, a poem or lyrics of a song, it is permissible that you quote the entire work. I would, however, then expect that your assessment is indeed detailed and that it proceeds in dialogue with the other work. In other words, you cannot simply copy the contents of an entire book, for everyone to see, followed by a comment, such as that it good or bad. Instead, the expectation is that you indicate that the book was good or bad and then proceed to explain why it was good or bad, in reference to specific examples that are relevant to your review of that book. With a painting or a photo, this is more difficult to do because you must often display it in its entirety, whereas a poem or lyrics of a song can be addressed line by line, nested in commentary, criticism, and/or discussion.
It is worth emphasizing that it may even be necessary to display the entire painting or the entire photo, because quoting must nonetheless be accomplished in a manner that is respectful of the quoted work and its author(s), as indicated in the Finnish copyright act (404/1961, 3 §):
“A work may not be altered in a manner which is prejudicial to the author’s literary or artistic reputation, or to his or her individuality; nor may it be made available to the public in such a form or context as to prejudice the author in the manner stated.”
Therefore, arguing in a review that a painting or a photo is, for example, problematic for certain reasons, solely on the grounds that the quoted part of it makes the work appear problematic may be unwarranted. Instead, the rest of the photo or the painting must also be taking into consideration and therefore it is warranted to quote the entire work. Otherwise the reader may end up thinking that the work is problematic, which may then be detrimental to the reputation of the author(s). It is in the best interest of the author(s) of the work to be treated fairly and therefore quoting the entire work is warranted in certain cases.
A Government Proposal (HE 287/94) gives us a better understanding of the intentions of Finnish legislators when it comes to the right quote. In summary, you must always be specific what and whose work you are using, to what extent you are using it, what your work is and what the connection is between that work and your work. All modifications must be indicated accordingly and they may not be done in a way that is detrimental to the original or its creator.
The Finnish copyright act (404/1961, 23 a §) also contains additional provisions for parody, caricature and pastiche. The first two permit people to use works in ways that the copyright holders might disagree with, while the third allows people play with their works, in some form that is reminiscent of those works, but nonetheless different from them, without necessarily being disagreeable.
The extent of the quote
What matters is addressing how much is necessary for a specific purpose? If something is explained or expressed particularly well in a dictionary, a novel, a poem, or lyrics of a song, or the like, it makes sense that you quote only a relevant segment and not the entire work in question. This also makes sense to others, because this way your work engages in dialogue with someone else’s work, kind of like alternating lines. Content dropping someone else’s literary work in its entirety makes little sense, because not all of it is relevant to your work.
This requirement also applies to visual works, such as photos, (photos of) paintings, (photos of) sculptures and (photos of) statues. The idea is that the works of others must have a clear connection to your work. You cannot simply use someone else’s photo or take a photo of someone else’s work and include it in your work for the sake of it. Again, the idea is that you engage in dialogue with someone else’s work.
I would say that it gets a bit trickier with audio and video. For example, covering an entire song or a sketch, not to mention an entire episode or a film, might not be warranted. It might be permissible, but I guess then one would have to do something like break down a song into segments, commenting on its merits, compare it with other songs, perhaps in the same genre, etc., to the point that the parts of the song are hardly recognizable as that song. I think this would be even more difficult with sketches of a sketch show, episodes and films, even with short films, because while it may well be permissible, if done in a way that is not prejudicial to the reputation of the author(s), the amount of work that would go into assessing it all, commenting, criticizing, and/or discussing it, would be staggering.
It is also worth noting that research is marked by its reliance on writing that is only occasionally supplemented by images. It does not mesh well with audio and video, simply because you cannot include either in the print format. You will not find highly detailed academic analyses of songs, television episodes or films in audio or video format. Instead, you will find certain lines presented in the written form or certain frames being used to demonstrate something about the visual features.
It is for the same reasons that you will not find detailed academic analyses of video games in video format. Instead, what you see is certain lines of dialogue being quoted and analyzed and/or certain screenshots used to illustrate certain points, while the most of the writing in articles, book chapters and books consists of the author’s commentary.
Editorial use
The right to quote is also integral to other exceptions indicated elsewhere in the Finnish copyright act. This is particularly the case with the use of copyrighted works by media outlets. For example, it is stated that (404/1961, 25a §):
“Works of art made public may be reproduced in pictorial form in material connection with the text…”
On the condition that it is included in:
“… a critical or scientific presentation[.]”
Or in:
“… a newspaper or a periodical when reporting on a current event, provided that the work has not been created in order to be reproduced in a newspaper or a periodical.”
What is particularly noteworthy here is that this applies to all visual works, except to those that have been created for these purposes. This specification makes sense in the editorial context, because if this limitation was not in place, media outlets could simply reproduce the photos taken by each other’s staff photographers.
It is also stated that (404/1961, 25a §):
“A work of art may be reproduced in pictorial form in cases … if the work is permanently placed at, or in the immediate vicinity of, a public place.”
Here the point is that if any visual work that enjoys copyright protection is visible to the public, can be photographed. It is added that (404/1961, 25a §):
“If the work of art is the leading motive of the picture, the picture may not be used for the purpose of gain. A picture having a material connection to the text may, however, be included in a newspaper or a periodical.”
Note here how the act specifies that any visual work that enjoys copyright protection cannot be photographed for subsequent commercial usage, but it can be photographed for editorial usage.
For example, if a new statue is unveiled, it only makes sense that a media outlet is allow to photograph it and to use that photo in the context of an article that addresses this event. Similarly, the art critic writing for the media outlet must, for example, be able to demonstrate why something is the case with a certain work. This also protects the creator and/or the copyright holder of the work, because this way readers can assess the veracity and honesty of the writer themselves, instead of having to simply trust the art critic.
It would by a wholly different story if the photographer or the media outlet would seek to directly gain from the photos. This would mean selling prints or other products, such as mouse pads, calendars or coffee mugs depicting the statue, or sell the photo for advertising or promotional purposes.
The photographers, videographers, media outlets and other companies who are the copyright holders or act on their behalf, can, however, make editorial photography their business. It is totally legitimate for them to license photos and videos for commercial and/or editorial uses. Large agencies usually clearly indicate whether a photo or a video can be used for commercial purposes or if its usage is limited to editorial uses only.
In summary, it is worth emphasizing that while editorial photography and videography tend to pertain to some event, they often also include people and property, as well as trademarks and copyrighted works. This is nothing out of the ordinary as it is how media outlets work, regardless of whether they are state owned, privately owned, publicly traded, for profit or non-profit.
Works in the background
It is also permissible to include copyrighted works in one’s own work if they remain peripheral to it. This exception applies to all uses, including commercial uses. It is stated in the Finnish copyright act (404/1961, 25 §) that:
“When a copy of a work of art has, with the consent of the author, been sold or otherwise permanently transferred, the work of art may be incorporated into a photograph, a film, or a television programme if the reproduction is of a subordinate nature in the photograph, film or programme.”
The first part here specifies that this applies to physical works of art, for example painting, sculptures and statues, that the creator has sold to a collector. The second part here acknowledges that it is permissible for it to appear somewhere in the background in some other work.
If this was not the case, it would be very difficult to sell photo prints or shoot films. For example, one would have to avoid including any statues or remove the from the view in post-processing. In any case, here the point is that many copyrighted works are in public and it is, in fact, difficult to avoid them appearing in subsequent works.
Fair Dealing
Academic publishers have their own copyright policies. Some of them acknowledge the right to quote, Fair Dealing and/or Fair Use. These rights or principles are not exactly the same, but they do function in a similar manner. In practice, they permit academics to quote copyrighted works, without having to consult the copyright holder(s).
Other publishers indicate that a written permission is needed from the copyright holder(s) if copyrighted works or parts of them are used in a publication, such as an article, book chapter or a book. While this may be the case in some jurisdictions, it is highly unlikely to be the case. The right to quote comes from the EU InfoSoc directive (2001/29/EC), which, to my knowledge, is adopted in most EU countries. In the UK, similar right is enshrined in the Copyright, Designs and Patents Act (1988) and known as Fair Dealing (Section 29):
“Fair dealing with a … work for the purposes of research for a non-commercial purpose does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.”
Some might argue that publishing research is commercial, because it involves money, namely in the form of subscription fees and author processing charges (APCs). However, academic publishing does not differ substantially from media in this regard. Many newspapers, magazines, TV-channels and websites rely on subscriptions. Even some radio stations rely on subscriptions. They also provide the opportunity to purchase access to individual articles, just like many academic publishers do. Many of them also make money from advertising, which makes them clearly more commercial than academic publishing.
The thing is, however, that newspapers, magazines, radio stations, TV-channels and websites, collectively the media, all rely on editorial usage and not commercial usage. This is also the case with academic publishers. They rely on editorial usage and not on commercial usage.
The media can also use screenshots and screen captures the same way, similarly to photos and videos, inasmuch it serves a purpose. A news website or a news TV-channel may, for example, use a screenshot or a short video of another website in order to illustrate that it contains problematic content or that it was briefly hacked to contain problematic content. This kind of use is editorial use. It is not commercial reproduction of someone else’s copyrighted works.
A peer-reviewed academic article may do the same. For example, an article may need to visually depict how political parties present themselves on their websites or how companies present themselves as environmentally sustainable on their websites.
The same applies to software, be it a word processor, a photo editor or a video game. If journalists review them or if academics analyze them, they must all have the right to visually depict then.
In all of these examples, it is necessary to include screenshots and screen captures, i.e., images and videos, of someone else’s copyrighted work because it is a matter of transparency and trustworthiness. To be clear, this is also a matter of fairness to those whose websites are being analyzed.
It is also worth noting that Fair Dealing (Copyright, Designs and Patents Act 1988, Section 30) also covers:
“Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement … and provided that the work has been made available to the public.”
Note how this is not limited to non-commercial use. This is further specified (Copyright, Designs and Patents Act 1988, Section 30) that:
“Copyright in a work is not infringed by the use of a quotation from the work (whether for criticism or review or otherwise) provided that … the extent of the quotation is no more than is required by the specific purpose for which it is used[.]”
Note here how this is not some carte blanche. The extent of the quote is limited by its purpose, in relation one’s own work. This is exception functions the same way as the right to quote, because Fair Dealing can be defined, in part, as a right to quote.
The same section also covers editorial usage, in reference to reporting on current events and caricature, parody and pastiche, while the following section covers the incidental inclusion of copyrighted works, for example in the background of a photo.
Fair Use
North America works differently from Europe. United States is particularly noteworthy, considering that many companies are based and many services are hosted in the country.
EU has the right to quote and the UK has Fair Dealing. Fair Use is the US equivalent to them. To be clear, just as Fair Dealing is highly similar to the right to quote, Fair Use is not just another name for Fair Dealing. It is, however, perhaps the best known of these three, while also being most misunderstood and misapplied.
Fair Use is a doctrine that applies only in the US. It used to be a common law doctrine, meaning that it could relied on in a courtroom, but it was not specified in any written law. It codified in the Copyright Act of 1976 and specified in in section 107. It is stated that it pertains to:
“[T]he fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching …, scholarship, or research, is not an infringement of copyright.”
To put this another, these uses are considered to be fair use of copyrighted works, which also means that there is no need to contact the rights holders for permissions, i.e., licenses. Interesting, this also applies to works that have not been published. Note also that this is not a full list. These are just some examples that are thought to be rather obvious fair uses. Other uses may also count as fair uses.
To be more exact, the fairness of use is assessed by using four criteria. Firstly, it is important to address why a copyrighted work is used, in its entirety or in part:
“[T]he purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes[.]”
Secondly, it is important to also address the used work:
“[T]he nature of the copyrighted work[.]”
Thirdly, the way in which a work is being used also matters:
“[T]he amount and substantiality of the portion used in relation to the copyrighted work as a whole[.]”
Fourthly, the impact that a use of a work has on that work must also be taken into account.
“[T]he effect of the use upon the potential market for or value of the copyrighted work.”
To be clear, this is not simply a matter of ticking a box. Addressing the first criterion, fair use can be commercial in character, for example if the extent of use is limited. This is addressed in the third criterion. This can be the case with works that are in the background in a scene in a film or an episode of a TV-series that takes place in a public place. Characters might be depicted as passing by it or it might be otherwise seen in the distance.
To give another example, a use might be non-commercial in nature, there being no intent to make profit, but that itself does not make the use fair. So, it is unlikely to be fair to show an entire film as an example of a certain theme in certain kinds of films. It is much more likely, albeit not clear cut either, that showing only a scene or certain scenes amount to fair use, as it is much more likely that the amount of material used is proportional to the purpose of using that work.
The first, third and fourth criteria address the relation between two or more works. Overall, using an existing copyrighted work in a way that ends up creating competition to it, as an alternative to it, is unlikely to be considered fair use, because the works are then very similar to one another in character and purpose of their use and likely to impact the copied work negatively in terms of its position and/or value in the market.
Addressing the second criterion, some might argue that it amounts to fair use, if one copies only a small part of a copyrighted work. However, it is equally, if not more important to assess what part or parts are copied. For example, chiascuro paintings play with light and darkness. They tend to contain large areas that are black. They are contrasted with a small area or areas that depict some figures, such as people talking to one another in candle light. It would likely be considered fair to copy the large black areas, but not the small area or areas, because the latter is more substantial in terms of its importance to that work than the former.
To be clear, fair use permits using an existing copyrighted work in its entirety, not only in part, even if the use has a negative impact on the copied work. To reiterate an earlier point, an art critic must be able to use a painting or a photo in an art review, regardless of whether the value or market of copied work is negatively impacted as a result of the review.
It is, however, worth adding that even if a work is copied in its entirety, for example in an art review, it is unlikely that it is copied in high resolution. A favorable review might result in increasing the demand the copied work, for example as a poster. However, a high resolution copy could easily be used by people to print their own posters, thus negatively impacting the copied work. This is also why search engines are allowed to show a low resolution copy of a copyrighted work, such as a photo, without constituting copyright infringement.
The third criterion also explains why a video review of a film is unlikely include the whole film. To be clear, it might be considered fair use to include an entire film, for start to finish, in high resolution, in a video review. It would, however, need to be presented in a way that does not amount to functioning as a mere copy of the copied work. For example, providing a bit context first, then including the entire film, from start to finish, followed by a review would unlikely be considered fair use, for the simple reason that it is easy to skip the added bit in the beginning and the review in the end.
To be considered fair use, it would have amount to a genuine, honest and thorough review of the copied work. Furthermore, it would need to be proceed in dialogue with the copied work, instead of neatly separated or separable from the copied work, as already noted. The commentary should also be substantial in length and in importance. This way the viewing experience is transformed from watching a film to watching a review of the film. Conversely, it is unlikely that covering an entire film, scene by scene, second by second, would be considered fair use if most of the review is the film itself, with only very short and uninsightful comments included here and there.
Such a lengthy review that proceeds in dialogue with the original would unlikely be considered a substitute, i.e., a mere copy, of the copied work and therefore also unlikely to be detrimental to the position and/or value of the copied work in the market, for the simple reason that something tells me that not a lot of people would watch a many hour long review of an hour or two film in the first place, not mention wade through the review parts in hopes of seeing the film that way.
To reiterate a point that I made earlier, this also applies to video games, including virtual reality games. It might be considered fair use to cover an entire video game in a video review, from start to finish, inasmuch the video review itself does not lend itself to functioning as a substitute of the copied work. The problem here is that it might end up being considered a mere substitute for the copied work, especially if the game is short and linear. The review would need to sizable in terms of its length and importance, and proceed in dialogue with the copied work to avoid people simply skipping the initial exposition and the review in the end.
There are many lengthy analyses, commentaries and reviews of various media, but it is rare that they incorporate entire films, episodes of TV series, novels or video games in them. In my view, this is not because this could not be done, but because it is not very interesting to do such. It would amount to an exercise in futility, something similar to conducting a highly detailed and lengthy analysis of a chiascuro painting, accounting not only for the figures depicted in light, but also the large dark areas that contain little to no detail, going on and on, and on, and on, about the minute variations of the dark areas, as if they could not be summarized as largely black and serving the function to create sharp contrasts that make the figures in light areas pop out.
Even if someone did such, in a rigorous manner, start to finish, scene by scene, second by second, page by page, word by word, the thing is that it would risk coming across insincere, not because it might not be sincere, involving countless hours of rigorous work, but because it might seem more like a parody of a review than an actual review. That might, however, qualify it as fair use as the original has then been transformed into a parody.
In research, this is also the reason why many thorough analyses are quantitative instead of qualitative. No one wants read, listen or watch some review for hours and hours, going through everything in great detail. Instead, they want to know what the point is. Qualitative analyses include a few examples and that is it. That is all that is needed. Quantitative analyses are helpful in this regard, because they address all that material, whatever it may be, albeit only in a certain, rather reductive way, so that one can understand what stands out in that material.
Comparison
Overall, the right to quote that applies in the EU countries, Fair Dealing that applies in the UK and the Fair Use that applies is the US are similar to one another, permitting all kinds of uses without having to acquire a permission, i.e., a license, but they are no the same. Furthermore, one must assess the use case by case, jurisdiction by jurisdiction. This also applies within the EU. While similar in many ways, Finnish copyright legislation is not exactly the same as, for example, Swedish copyright legislation.
It is worth emphasizing this matter of jurisdiction. To be negative, one is liable of copyright infringement in all jurisdictions, inasmuch copyright exists in some shape or form those jurisdictions. This is known as forum shopping. To be positive, copyright infringement is at the same limited by jurisdiction. In practice, this means that the copyright holder can only recover damages that are specific to a certain jurisdiction. This mitigates the effectiveness of forum shopping as it makes little sense to take someone into court in a jurisdiction that has more stringent copyright legislation when the court can only assess the damage done in that jurisdiction.
For example, if a media outlet situated in Portugal uses my photo without my permission, i.e., without a license, I can seek damages all over the world, but only case by case, jurisdiction by jurisdiction. If I take action in Finland, I can only ask to be compensated for the infringement inasmuch the damage was done in Finland. I must therefore take action in Portugal, if I wish to be compensated, because the dame was done in Portugal.
What makes this tricky is that I must then claim that the damage was done in Portugal and not, for example, Angola, Brazil or Mozambique. It could be that the media outlet is popular in these former Portuguese colonies and not in Portugal. Therefore, it makes little sense to take action in Portugal.
This is particularly problematic languages that are spoken all over the world, namely English, French, Portuguese and Spanish. It is not that one cannot seek compensation for damages in a certain jurisdiction, but rather that it is virtually impossible to indicate where the damage was done and its extent when something like a photo used in an English medium news article is relevant and accessible all over the world.
In summary, the way jurisdiction work in relation to copyright is negative because one can be taken to court over copyright infringement all over the world, yet this is also positive at the same because it makes no sense to take anyone to court over something that did not or cannot be proven to have resulted in damage in that jurisdiction.
Nonetheless, what is, perhaps, the most important thing to keep in mind is to not go thinking that your use is permitted simply on the basis that you thought that it was permissible. Instead of simply trusting some random person or some random blog on the internet, in this case me and my blog, do your own work to see what exceptions and limitations to copyright apply in jurisdictions that are relevant to you.
I would also recommend using your own work whenever possible. It is the simplest solution. You do not need to know the jurisdiction specific exceptions and limitations, nor to ask for permission, i.e., acquire a license, if the various exceptions and limitations are not applicable in your case. However, sometimes this cannot be done and therefore it is crucial to know the various exceptions and limitations to the exclusive rights of the copyright holder(s).
References
- Crellin, J.,and J. Wetzler (2023). A Journalist’s Guide to Creative Commons. Mountain View, CA: Creative Commons Corporation.
- Creative Commons (n.d.). CC BY 4.0. Attribution 4.0 International: Deed. https://creativecommons.org/licenses/by/4.0/
- Creative Commons (n.d.). CC BY 4.0. Attribution 4.0 International: Legal Code. https://creativecommons.org/licenses/by/4.0/legalcode.en
- Creative Commons (n.d.). CC BY 4.0-NC. Attribution-NonCommercial 4.0 International: Deed. https://creativecommons.org/licenses/by/4.0/
- Creative Commons (n.d.). CC BY 4.0-NC. Attribution-NonCommercial 4.0 International: Legal Code. https://creativecommons.org/licenses/by/4.0/
- Oxford English Dictionary Online (n. d.). Oxford, United Kingdom: Oxford University Press.
References (legislation)
- Copyright, Designs and Patents Act 1988.
- Copyright Act of 1976.
- Directive 2001/29/EC of the European Parliament and of the Council.
- Hallituksen esitys (Government Proposal) (HE 287/94).
- Tekijänoikeuslaki (Copyright Act) (404/1961).