How many continuing medical education producers have paused over that inevitable Far Side cartoon on a slide and wondered, “Am I supposed to ask for permission to use this?” The dilemma is complicated by the fact that laws governing copyright and intellectual property are not black and white, and faculty may not understand how copyright law applies to CME. In reality, many of us may not understand how copyright law applies to CME. I’m going to try to give you a better sense of what copyright is and enough information to make sure that the next time a cartoon is staring back at you, you know the right questions to ask.
What Do All of These Terms Mean?
First, let’s get some definitions out of the way.
Intellectual property refers to creations of the mind. There are four ways to protect different types of intellectual property: patents, trademarks, copyrights, and trade secrets. Types of intellectual property can include journal articles, books, photographs, X-rays, cartoons, PowerPoint slides, and clip art (yes, clip art!). Here, we’re going to be discussing copyright.
Copyright is a form of legal protection given to owners of creative works and generally gives the owner exclusive rights to the work for a period of time. Copyright does not require any sort of official registration—a work is copyrighted as soon as it’s created, and a work is “created” when it is fixed in a copy for the first time. A work, whether printed or in electronic form, is not required to be marked by a © to indicate whether or not it’s copyrighted, meaning that the absence of the mark is not free license to use, nor does it mean that it is in the public domain.
The owner of the copyright is called the copyright holder. This typically is the creator of the work, unless the work was created under a work-made-for-hire contract, or within the scope of the creator’s employment. Copyright holders have certain exclusive rights to the work for a defined period of time. The copyright holder may grant a license or permission to use the material, and may charge a fee for this. Someone else’s copyrighted material is frequently referred to as third-party content. A work may also be in the public domain, which means that the copyright has expired, the work is not copyrightable or protected by copyright, or the author does not want to retain the rights to that work. Works produced by the federal government, and some produced under contract to the federal government, are not copyrighted.
When an article is published in a journal, magazine, book, or other publication, the author usually transfers ownership of the material, frequently including tables, to the publisher. In the cases where an author has borrowed tables or illustrations from another person, the publisher or author must obtain permissions to use the copyrighted material in the article. Copyright for any illustrations usually belongs to the artist.
These are not hard-and-fast rules, though. You may grow tired of my saying this, but when in doubt, ask.
Many of us have heard the term fair use and assume that it applies to third-party content used in education. And CME is education, right? Then we’re covered! Not so fast. There are four factors that are used by the courts to determine whether or not the use qualifies as fair:
1) the nature of the copyrighted work,
2) the amount and substantiality of the
portion used,
3) the purpose and character of the use, and
4) the effect of the use on the potential
market for or value of the work.
Unfortunately, there is no table or chart that clearly tells you that exactly what you’re doing falls under the doctrine of fair use. Fair use is a defense to a claim of copyright infringement; therefore, practically speaking, there are two ways to handle the issue of whether your use of third-party content is fair: Ask the copyright holder to see whether you need to receive written permission; or use it, have the copyright holder take you to court, and let the court’s decision stand as your answer. If you want to be sure, it’s probably simpler to ask.
Now that you know a bit about copyright, how can you tell if you need to seek permission? The answer is not very comforting: Every image, chart, or table should be considered to be suspect and you should ask the faculty members about where they obtained them.
To be able to ask for permission to use material, you have to know who owns the copyright. Sounds as if it should be simple, but oftentimes, it isn’t. Sometimes, the faculty member won’t remember where he or she found the material, or you may hear the dreaded “I found it on the Internet.” So, you may have to do some research. If the faculty member isn’t sure, Googling a phrase from the text or searching for the topic in Google and then selecting Images may be helpful. A note of caution: Many Web sites will do the same thing faculty does—include images or text that they don’t have permission to use—so just because you (finally) found it online somewhere doesn’t mean your search is over. For images, one indicator that a Web site may not own the copyright is if the images on the page appear inconsistent in style, color, or size, or if they are fuzzy, pixilated, or strangely cropped. It might be easier to locate another image or different text to use whose ownership is known.
If the faculty member obtained the image from a colleague or from a hospital or university database, determining copyright ownership can be tricky. The colleague or organization doesn’t necessarily own the copyright, so additional research may be required. And the colleague that your faculty member borrowed it from may have published it somewhere, meaning that he or she doesn’t own the copyright—but he or she may not realize that. Again, if you are not getting the answers you need about where the material came from, you might want to consider looking for a replacement.
Once you have finally located the copyright owner’s Web site, you’ll need to identify and follow their process for permissions requests. Many times there will be a link at the bottom of the Web page that says “Legal” or similar, or you can type “copyright” into the Web site’s search field. Many larger Web sites and journals now use a service called Copyright Clearance Center, which is generally easy to navigate.
When you request permission, be sure to consider all the ways that you will be using the material, and request permission for all of them. Are you just going to display it in a PowerPoint format? Are you going to print handouts that include images? Are you going to film the material or capture the audio and post or sell it online with the handouts? If so, what is your potential audience? Are you going to distribute a copy of the handouts on flash drive or CD-ROM? Remember to think about any of the ways that you might want to use the material in the future, too. That way, if you decide to repurpose the material later, you won’t have to go back and request additional permission.
Dealing with third-party content can seem to be pretty daunting, and in truth, it is challenging. There are a few things you can do ahead of time, though, to help make the process a bit easier and more manageable.
First, develop an intellectual property policy in conjunction with your organization’s legal counsel. Talk to your counsel about how you use the material and they will help you formulate a policy that will mitigate risk and help you develop clear communications to staff and faculty about third-party content. Have honest conversations with your faculty about copyright and the challenges it poses, and provide them with materials to educate them on what to look for when they are selecting images and materials to include. Once the policy is in place, and you have shared it with faculty and staff, create forms for faculty to use to disclose any third-party content in their materials. Include third-party content due dates in your project timelines; remember, it can frequently take six weeks or more to hear back from copyright owners, so you’ll want to encourage faculty to think ahead. One important note: No response does not equal tacit permission. You have to hear back from the copyright owner in the affirmative before including the material.
Copyright permissions can also be expensive. Be proactive in determining what you can afford to spend and include that in your budgeting process. Then work with the faculty to make decisions about what to include.
Look for public domain or no- or low-cost images. Consider Wikipedia, and federal government Web sites, particularly that of the Centers for Disease Control and Prevention. One caveat: not everything there is public domain or free of copyright, so make sure you read through the information provided to ensure that the image is in the public domain or has no restrictions on usage. The good news is that all of the above-mentioned sites typically include very clear information about copyright ownership.
As busy CME professionals, it is sometimes disappointing to have one more thing to worry about, but I hope that the path has now become a bit clearer. Making some process changes and asking the right questions can make complying with copyright law a bit less confusing and help avoid lawsuits.
Elizabeth Campbell is the manager of continuing professional development activities at the American Academy of Family Physicians, and she is passionate about Family Physicians’ maintenance of certificatio
n. She developed a career-long interest in copyright during her decade spent in the publishing industry, and enjoys writing and speaking about the topic. However, she is not a lawyer; the material in this article is being provided for informational purposes only and does not constitute legal advice. If you have specific questions about how you use intellectual property, you should consult your legal counsel. If you have general questions about copyright and the CME environment, she is happy to have a discussion. She can be contacted by e-mail at ecampbell@aafp.org.
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