But wait some might say. Is it not a stretch? If a mental health practitioner is dishonest about or ignorant of intellectual property does that mean they are dishonest or ignorant when it comes to treating patients? There is no connection some might say. But how is a consumer/patient to be sure? If someone has such little regard for the intellectual property of respected colleagues why should a patient think they will regard their property, money, views, privacy with any higher regard? That is the conundrum and as consumers become more informed and empowered that question becomes even more relevant to all of us in the mental health field.
Let me give an illustration. I know of an organization that works to preserve the privacy of mental health records. As someone who has fought for preserving privacy of mental records myself, I applaud their goals. It is a worthy organization on the whole. Some of their methods concern me however. Now the battle for privacy is an up hill fight these days and many will say we are losing if it is not lost already. The reasons we are losing are complex but in my opinion part of our difficultly is that some of us think that the ends can justify the means and ultimately that invariably leads to being self-defeating. It will always go to our creditability in the end.1 And if as mental health professionals we cannot be viewed as creditable or trustworthy what else do we have going for us?
Among those methods used by this organization and others by the way is that in their efforts to educate they often include the cut and pasting of news or journal articles to various discussion groups on the internet to be shared by their colleagues including one they sponsor without apparently obtaining the permissions of the author or publisher i.e. legal copyright holder. No doubt the leadership believes that what they are doing is proper and legal under what is called fair use. No doubt they would argue as some others have that circulating a news item on a discussion group or listserv is the equivalent of showing an article to a friend, cutting out something to mail to someone, etc. Such a practice could not be construed as taking the article for one’s own purposes they might claim.
But are they correct or ignorant of the issues involved here? It truly is complicated. One expert I consulted with said such a view is not necessarily wrong but it isn’t necessarily right either. It depends on a number of relative scales and a single article may or may not be copied under fair use. 2
Now fair use is a concept that we have touched upon in other articles in this series but it is not easily to pin down at all. Basically it means there are times when one can take a copyrighted work even without the author or publisher ‘s permission and disseminate portions of it or use it for our own purposes. However those situations are very limited and the formula to calculate it is fairly complicated. There are a number of factors that courts consider. Below are uses that are generally considered fair use. These rules are excerpted from: When Copying is OK : The Fair Use Rule by NoLo a provider of do-it-yourself legal solutions for consumers and small businesses. The commentary however below each rule is my own.
According to NoLo, there are five basic rules to keep in mind when deciding whether or not a particular use of an author's work is a fair use:
Rule 1: Are You Creating Something New or Just Copying?
When my colleagues either as part of this organization protecting privacy or simply members of freestanding internet discussion groups cut and paste from news sources, or professional journals are they merely copying or are they using the work to create something new or "trans formative"? When one of my colleagues cuts and pasts an entire or substantial portion of an article from: The NY Times, Washington Post, LA Times, Newsweek, Routers, The BBC, The Monitor, Modern Health Care Online etc. etc, to a discussion group what new or trans formative work are they creating? It might depend on the type or amount of comment they make to get the readers to think in a different way. The more trans formative the more likely that a court will conclude it is fair use. That means that simply a cut and paste, which adds little new information, will likely be seen as merely copying and possibly an illegal or actionable activity.
Rule 2: Are you competing with the source you're copying from?
Now some of my colleagues are under the impression that competing here means that they are intending to profit monetarily from this activity. Since most posters to Internet discussion groups have no financial motives they feel safe that it is fair use. But is that so? Not according to John Gile of the Writers Union. One can violate another’s copyrights if you impair or ruin the market for their work even if you yourself are not competing with them for actual profits. He indicated that posting an article to the Internet can interfere with the author’s intent to market the work in other venues. If it’s posted on the internet it becomes used in a sense and old news thereby diminishing its value. Gile says, the authors work could also be misinterpreted and/or be used to convey something other than the author’s intent so it is not just when it is sold for profit that is a problem.3
Rule 3: Giving the author credit doesn't let you off the hook.
This is a common mistake that many of us make. It is proper to give an author credit. Failure to do particularly if we give the impression that the work is our own is plagiarism.4 Even high schools students are or should be aware of that problem. Fair use is something else again however. You have the right to use another work under fair sue or you do not. Giving credit is important and necessary but it is not part of the equation in calculating fair use according to the experts.
Rule 4: The more you take, the less fair your use is likely to be
This seems fairly obvious except to some of my colleagues. It’s one thing to take a brief excerpt, cite the source and provide the reference or link. It’s quite another matter to cut and paste the full article or 80% or so. There is no specific limit and each case would need to be evaluated separately but cutting and pasting an entire article and attaching a statement that it is copied as fair use as was discovered to be done by some of my colleagues may not be of much protection. In fact according to one expert it could be used to demonstrate that the copier was aware of the concept of fair use by a copyright holder claiming infringement.5 Therefore this could be a case of one hosting themselves on their own petard so to speak.
Rule 5: The quality of the material used is as important as the quantity
Sometimes even a small portion of a copyrighted work can create a problem. Look it may not matter if you only took a small amount of someone ‘s work if that little bit is the crux of the matter. Suppose in 1905 or so someone took only E=MC2 from Einstein’s paper of perhaps several thousands words and published that thought without his permission. It would be a problem because those five characters pretty much say it all. The more important the material is to the original work, the less likely your use of it will be considered a fair use. The famous example cited by many sources is former President Gerald Fords Book where the magazine, The Nation obtained a copy of Gerald Ford's memoirs and while they only took 300 words it was enough to violate Fords copyright.
So while there are no hard and fast rules NOLO, where these five rules were obtained recommends that “Take from someone else only what you wouldn't mind someone taking from you.”
The Irony
Now here is the incredible irony as I see it. You see in an attempt to get all sides on this issue I have contacted many of the people who have on a regular basis cut and paste articles from news sources journals etc. and asked for a comment for the record. So far they have declined. Some graciously declined and some not quite graciously at all. Some were quite emphatic that I may not quote them.
Here is where the irony as I see it comes in. You see since I am doing what would be considered investigative reporting by most standards I do not really need anyone permission to identify those who cut and paste entire copyrighted articles without permission any more than Mike Wallace of 60 Minutes needs permission of potential or alleged wrongdoer to report on issues that concern the public. Nor do I need to seek their permission to comment on their rational for statements they made publicly or in non-confidential communications for what they do. My contacting people for comment like any journalist are on the record unless stated otherwise. It’s news and the actions and statements of these practitioners are newsworthy. That happens to be fair under the fair use rule.6
However my colleagues can relax at least for the moment. There really is nothing to be gained at this time to identify or quote them. I have every right to do so, but what is the point of quoting someone who is too squeamish, fearful or embarrassed to stand by his or her own words? Such quotes would simply be not worth printing.
The sad and ironic thing is their actions will doom even their good works. If I am right, it is only a matter of time before enough of authors and copyright holders learn of their practices and take remedial steps. What remedial steps they take will depend on the circumstances. This could cost them a lot in time and money and detract from their legitimate efforts not to mention the damage to their reputations. It won’t take much for others including the insurance industry to find out about their questionable practices and use it to their advantage in characterizing those who do this as untrustworthy. It’s like the US government seeming to condone torture of suspect terrorists. It accomplishes little and plays into the hands of our adversaries.
And in time also the consumer public may come to question if these mental health providers they are so cavalier with a colleague’s intellectual property can they be trusted with their privacy and mental health.
However the incredible irony of ironies is that people who want to have control over who can quote their public comments think nothing of freely copying or quoting the copyrighted works of others. They want to do unto others but expect immunity for their behavior.
Footnotes
1. There is no need to identify this organization at this time. There are perhaps more than one and it is also possible that others are engaging in the same behaviors. In time their own actions will reveal themselves.
2. See interview with Ed Coburn, MBA of http://www.insiderlawethics.com/ed_coburn_interview.html
3.See http://www.insiderlawethics.com/ed_coburn_interview.html
4.http://www.insiderlawethics.com/ed_coburn_interview.html
5. Follow contact with Ed Colburn specifically on the matter of placing “COPIED as FAIR USE” tags at the end of cut an pastes to the Internet
6. News reporting -- for example, summarizing an address or article, with brief quotations, in a news report. See http://www.nolo.com/article.cfm/pg/2/objectId/C3E49F67-1AA3-4293-9312FE5C119B5806/catId/B2BF24DF-082A-4813-A840F5080C3EAB71/310/276/240/ART/
