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Contents

Copying, Reproducing, Adapting, and Other Uses of Content 

Chapter:
Ethical and Legal Considerations
Author(s):

Annette Flanagin

Copying, Reproducing, Adapting, and Other Uses of Content

To copy or reproduce an entire work without authorization from the copyright owner constitutes copyright infringement. However, a reasonable type and amount of copying of a copyrighted work is permitted under the fair use provisions of US copyright law.14(§107)

Fair Use.

What constitutes fair use of copyrighted material in a given case depends on the following 4 factors14(§107):

  1. 1. Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

  2. 2. Nature of the copyrighted work

  3. 3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole

  4. 4. Effect of the use on the potential market for or value of the copyrighted work

Although each of these factors may provide a safe haven for use of copyrighted works without permission from the owner, the fourth factor, the market value of the original work, has been considered important by the courts in copyright infringement cases.

Fair use purposes include “criticism, comment, news reporting, teaching, scholarship, or research.”14(§107) This allows authors to quote, copy, or reproduce small amounts of text or graphic material. Appropriate credit should always be given to the original source. In the case of a direct quote, quotation marks or setting off the quoted material, with an appropriate reference or footnote to the original source, is required (see 5.4.2, Scientific Misconduct, Misappropriation: Plagiarism and Breaches of Confidentiality).

Text.

The amount of text subject to fair use is determined by its proportion of the whole, but this proportion is not measurable by word length. Contrary to popular belief, there are no specific numbers of words or lines or amount of content that may be taken without permission. The so-called 300-word rule has been cited erroneously to justify quoting passages of text without permission. This erroneous assertion probably originated with the custom of sending out review copies of books and allowing reviewers to quote passages of 300 words or less in a published review.50 In 1985, the Nation magazine lost a landmark suit for copyright infringement after publishing a 300-word excerpt from then-President Gerald Ford’s 200 000-word unpublished memoirs, which were to be published as a book by Harper & Row (Harper & Row Publishers, Inc v Nation Enterprises).51 In this case, the trial court ruled that the excerpt “was essentially the heart of the book.”51 The Chicago Manual of Style recommends that a quote never extend more than a “few contiguous paragraphs” and that quotes, even if interrupted by original text, should not “overshadow the quoter’s own material.”45 The length quoted should never be such that it would diminish the potential market for or value of the original work.

Tables, Graphs, and Illustrations.

Fair use of tabular and graphic material and illustrations is more difficult to assess. Although 1 or 2 lines of information from a table might be used without permission, reprinting the entire table without permission is inappropiate and could result in a claim of copyright infringement. The same applies to graphs and illustrations. JAMA and the Archives Journals require all authors to obtain permission to adapt a part of or reprint an entire table, graph, or illustration that has been previously published. Unrestricted permission is needed to reproduce this material in all “print, online, and licensed versions” of the journal. Online readers of JAMA and the Archives Journals may download copies of tables, graphs, and illustrations as PowerPoint slides for use in teaching. Citation to the original publication is indicated on each downloaded slide.

Photographs and Works of Art.

Photographs and works of art protected by copyright may not be reproduced, enhanced, or altered without permission of the copyright owner, who may be the photographer or artist, a museum or gallery, an academic institution, a commercial entity, or a previous publisher. For example, JAMA obtains permission from owners of copyrights of works of art, typically museums and galleries, to reproduce works of art on the cover of JAMA. In this case, JAMA receives a nonexclusive 1-time right to reproduce the art on the journal’s cover in print and online; often the permission for online use is a separate permission (see also “Digital Images and Other Works” later in this section). This does not permit reuse of the cover of a specific issue of JAMA in other works or promotional material without obtaining permission for such secondary use from the owner of the work of art included on that issue’s cover.

Unpublished Works.

Authors should not rely on the fair use provision to justify quoting from unpublished manuscripts and letters.45,50 In several cases, the US courts have taken a conservative view toward use of extensive quotations and paraphrasing from unpublished works without permission, making it difficult to justify such use. In J. D. Salinger v Random House, Inc,52 the Second Court of Appeals ruled that inclusion of extensive quotes from Salinger’s unpublished letters in Hamilton’s unauthorized biography of Salinger was improper. In a subsequent case, New Era Publications International, ApS v Henry Holt and Company, Inc,53 the trial court ruled that quotation from unpublished work was not fair use “even if necessary to document serious character defects of an important public figure.” For terms and conditions of copyright protection for unpublished works, see the Table.

Correspondence and Reviews Regarding Manuscripts and the Editorial Process.

All correspondence regarding a manuscript and the editorial process is considered unpublished and thus should not be used without knowledge of the owner of the correspondence. In the case of a letter, the letter writer is the owner. In the case of a manuscript review, the peer reviewer is the owner, unless the reviewer was contracted under a work-for-hire provision. Thus, authors and journals have no legal right to publish extensive quotes or paraphrases of reviews without the reviewer’s consent (see 5.7.1, Confidentiality, Confidentiality During Editorial Evaluation and Peer Review and After Publication) or of letters, not submitted for publication, without the letter writer’s permission (see “Quotes and Paraphrases From Oral and Written Communications,” below). In addition, to date, the courts have not allowed attempts to gain access to confidential peer review records or confidential information about manuscripts that are not published or not included in published articles (see 5.7.1, Confidentiality, Confidentiality During Editorial Evaluation and Peer Review and After Publication).

Quotes and Paraphrases From Oral and Written Communications.

Many journals accept citations to personal communications (ie, oral and written communications). Court decisions regarding use of unpublished works52,53 indicate that written communication, such as a letter or a memorandum (whether handwritten, typed, printed, or in digital format), if unpublished, may require permission from the letter or memo writer to be cited in a published work. Unless recorded, an oral communication, such as a personal or telephone conversation, cannot be copyrighted. However, authors should obtain written permission from the sources of quotations that are cited as oral and written communications in their manuscripts and should provide a copy of all such permissions to the journal21 (see also 3.13.9, References, Special Print Materials, Personal Communications).

Works in the Public Domain.

Works in the public domain (which are not protected by copyright) may be quoted from freely, with proper credit given to the original source. Examples of works in the public domain include those funded completely by the US government and those works on which the copyright term has expired (see also “Works in the Public Domain or Created by the US Government” in 5.6.4, Types of Works and Copyright Duration in the United States). Other examples are available from Project Gutenberg.47

Abstracts.

One widely debated application of fair use is the reproduction of abstracts of journal articles in other publications or databases. It can be argued that abstracts, especially structured abstracts, represent the whole work. As a result, any secondary publication or commercial use of abstracts of journal articles as derivative works in print or online without permission of the copyright owner may be considered copyright infringement.

Digital Images and Other Works.

Fair use considerations apply equally to reproductions of copyrighted material published in digital format. That is, what is considered fair use in the print domain is likewise fair use in the electronic world. Copyright infringement is a violation of the law—whether the infringed work is photocopied, printed, or copied electronically (see also discussion of the US Digital Millennium Copyright Act in 5.6.3, Copyright: Definition, History, and Current Law). Thus, digital works (eg, digitally produced or reproduced photographs, slides, radiographs, scans, chromatographs, and audio and video files) are protected under copyright law and require permission from the copyright owner to be reproduced in a publication.

With high-performance computer technology, digital images can be manipulated to enhance communication. However, digital adjustments could also be used to bias findings or to deceive. Journals should have guidelines for submission (including recommended file formats and sizes for editorial review and publication), enhancement, and publication of digital images, audio, and video that require authors to identify the software used as well as a record of how the original work was obtained and whether it was altered or manipulated.54,55 Some journals have defined acceptable alterations (such as cropping) and proposed the use of standards for color, brightness, and scale. Others have developed mechanisms to identify inappropriate manipulation54,55 (see also 5.4.3, Scientific Misconduct, Inappropriate Manipulation of Digital Images).

Linking and Framing.

Linking is a fundamental feature of any electronic publication. Many online versions of articles contain hypertext links within the article (eg, to and from citations to references, tables, and figures) and links external to the article (eg, to other articles or resources). Such linking is generally considered appropriate use. However, deep linking into a particular internal page of a website, especially if it permits circumvention of access restrictions or barriers, may be considered an unlawful use of the linked-to material.42(p96) Framing is the enclosure and display of another’s content within a frame that has the branding and navigation of the framing site. Such framing may be argued to be the creation of a derivative work, which, if done without permission, will likely be regarded as an infringement.42(p98)

Fair Use Exclusions.

If a portion of a copyrighted work is to be used in a subsequent work and such use is not fair use, written permission must be obtained from the copyright owner (see 5.6.9, Permissions for Reuse). Examples of such portions include text, tables, graphs, illustrations, or photographs. It is never permissible to use an entire article unless permission to do so is obtained in writing or the article is not protected by copyright. If there is doubt about the copyright status of a particular work, an inquiry should be directed to the author, publisher, or national copyright office. In all cases, the material should carry a proper credit line and, if applicable, copyright notice:

Data Adapted From Table and Used in Subsequent Article

Table 1 is adapted with permission from Bax M, Tydeman C, Flodmark O. Clinical and MRI correlates of cerebral palsy: the European Cerebral Palsy Study. JAMA. 2006;296(13):1602-1608. Copyright 2006 American Medical Association.

Reprinting Entire Article

Reprinted with permission from JAMA (2006;296[13]:1602-1608). Copyright 2006 American Medical Association.

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