Daniel F. I. Kurtycz, MD
Thanks to our digital devices and Web access, the world has opened up. Accessing almost any type of information has become easier by orders of magnitude, and even the most arcane information can be found somewhere on the Web. As more of the information comes through our screens, the use of print media goes down proportionately day by day. Of concern to those of us in anatomic pathology are digital images derived from our work and our research. Who has claim to the photo? Is it the person who took the photo, the institution he or she works for, the publishing company if the image is published, or the patient whose biopsy was the source of the image? The legal side of ownership is murky and usually decided case by case, but we do tend to follow certain ethics and conventions. However, these laws, ethics, and conventions evolved with the use of print and other physical media that had significant costs of production and distribution. They became what they are before the Internet made distribution costs almost negligible, and copying technologically trivial.
Web access increases our reach but impairs security. If someone copies and uses the images for his or her own personal aims, “fair use” doctrine (more on this later) says it is probably acceptable. But technology has outstripped the law, and there are numerous questions the courts have not been able to deal with.1
Why do we care about ownership of our images? We investigate the case material, make the diagnosis, and offer proof of our expertise through images we produce. That must be worth something. In addition, pathologists are pack rats. We love our hoard. We expend effort to create the material. We have the idea that the images may have value, and we may need them at a future time. In all likelihood, they are not worth much. Few people understand the nature of our material, so there is no broad demand. Further, unless the material is meticulously documented, searchable, and stored in an organized fashion, no one will be able to use it. Anyone who has spent time in practice knows about having to discard boxes and volumes of randomized slides, photomicrographs obtained through a lifetime of work, when a senior retires. We don’t have time or resources to catalog all the material, scan Kodachromes, or fix old glass slides. What’s more, modern digital cameras have improved resolution and clarity, such that the older film-based images are usually inferior. Only the unique Kodachrome deserves to be scanned for the archives.
Our material may have value if it leads to publication. It may add to our CV, demonstrate expertise, and lead to recognition for promotion or consultation.
Who wants our material? Pathologic information is useful to people seeking educational, clinical, or research information. Students, residents, other pathologists, or clinical colleagues may want access at one time or another.
We fear we may not get credit for our work if we allow free access. It took effort to gain the expertise to know what photo to take. If we give it away, we will have less personal value. We feel slighted when, in conference or in publication, a clinical colleague takes credit for a diagnosis we produced. Once an image is generated, especially one related to an important or interesting case, it becomes hard to control it.
There is a pervasive attitude on the Web, often inversely proportional to the age of the user, that information should be free. There tends to be a casual attitude about ownership. If information is restricted at one site, go to another; someone will offer free content. There is Wikipedia or Google Image. The sites that offer free content do so by tying it to nonprofit sponsorship, advertisement, or any one of a number of marketing schemes in which intellectual property is offered up to a user for something that the Internet site owner deems of value.
Organizations such as Electronic Frontier Foundation and Public Citizen strive to keep the Internet free and open. They idealistically work to maintain First Amendment rights and other civil liberties and to prevent what they consider to be undue interference by any government. Numerous scholarly articles challenge protective authorship.2,3 Many authors object to copyright because they hold the opinion that one party’s absolute retention of ideas or images will stifle creativity, especially as the owner of the original idea tries to expand the area of influence and claim recompense for all products the originator deems derivative.
“The cat is already out of the bag” is another argument against copyright. It was possible to control information when you needed printing presses, phonographic record presses, and darkrooms to disseminate intellectual property. Now any laptop computer, even your iPad, can assume all of these functions with relatively short learning curves. It is just too easy to duplicate materials. The recording industry has been trying to stuff that cat back into the bag for a number of years. The net result: thousands of small lawsuits filed and actions taken against mostly children and young adults. It has been a public relations disaster with the very public that consists of its customers. It has been reported that the Recording Industry Association of America (RIAA) spent about $64 million to get $1.4 million in settlements from users and companies over a three-year period (www.techdirt.com/articles/20100713/17400810200.shtml). The RIAA has abandoned the individual lawsuit tactic as economically untenable and is seeking legislative and other remedies. Netwide opposition to the efforts of the recording industries to institute SOPA (Stop Online Piracy Act, U.S. House of Representatives) and PIPA (Protect IP Act, Senate) was the talk of the news media for days in January 2012 and stopped the progress of those bills.
Sure, you can try to protect your image. There are numerous articles in the computing and medical literature about watermarking or other methods of branding images in the hopes of achieving greater security. While these marks may remind a casual user that he or she didn’t create the image and prompt the user to offer appropriate citation, they also may mar the image and detract from its scientific value. Second, if someone wants to get rid of such marking, a few minutes with Adobe Photoshop will do. These fingerprints have varying levels of sophistication, and the more advanced techniques are not readily available to today’s user, but they may be with time and appropriate software development. Then we get into a battle we have seen before: the hacker creating a virus and the software developer creating what’s needed to stop the virus. No image is safe from a dedicated, talented bandit.4
The copyright laws of the United States are codified under Title 17 of the U.S. Code.5 They offer protection to the authors of published and unpublished works of literary, dramatic, musical, artistic, and visual natures. It secures the rights of production of the original work as well as derivatives. It gives the author rights to public display and performance. The copyright laws generally show more attention to protecting the rights of creative-artistic authorship than works of academic or scientific origin. In fact, the government tends to allow “fair use” if the material is clearly educational or scientific.
The fair use section of the law says a portion of someone else’s work may be reproduced for “criticism, comment, news reporting, teaching, scholarship, and research.”6
There are four features to determine if the use of someone else’s work is “fair”:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
- The nature of the copyrighted work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- The effect of the use on the potential market for, or the value of, the copyrighted work.
The fair use section points out that the difference between fair use and infringement is sometimes vague. When cases come to suit, they are often decided case by case. No defined number of words, lines, or images can be taken without express permission. Moreover, legislative bodies that write and modify the laws cannot hope to keep up with the pace of technologic change.
There are ethical practices that are merely good behavior and common sense. Do not use material that you did not create for publication or presentation without citation. Do not use too much of another's material. You may use material for publication with the permission of the author and the publishing company that holds the copyright. Yes, you should request permission from both.
Professional organizations and major scientific journals have devoted a lot of time and effort to determining what is appropriate behavior regarding duplicative publication, conflict of interest, disclosure, electronic access, data sharing, digital image integrity, and research subject protection. Those in the publishing environment can react more quickly to changes than can legislators. The professional groups and journals have generated best-practice documents, including society guidelines, publication guidelines, and text embedded in instructions to authors.7 These published guidelines may be used in legal proceedings to define the standard of practice.
Using another’s work without giving due credit is, of course, plagiarism, and that intentional ethical lapse carries serious academic and potentially legal consequences. While a lawsuit may not be filed, a reputation may never recover.
You must know what is yours. In the course of a career a teacher in the medical sciences can acquire tens or hundreds of thousands of images. Some may be officially or unofficially borrowed from others. The images may be obtained from the Web or from other people. Sometimes interesting images are traded like baseball cards. We might not remember where we obtained the image. Over time we might become so familiar with the image that we forget we didn’t make it. Few of us use or track the metadata encoded in many original images, which gives information as to where and how the image was obtained. The upshot: If you aren’t sure, you shouldn’t publish it or represent it as your work at any meeting. Fair use dictates that you could still use it for local teaching, but not at any conference or teleconference for which you receive honoraria or something of value, such as recompense for travel, meals, or lodging.
Trusting the image is yet another part of digital image security. Was it manipulated? In the days before Photoshop you would have to pay a company like Scitek $250 per hour to color balance images for print magazines. Now a reasonably trained undergraduate will do it for less than $20 per hour. An expert can further alter the image, adding or deleting features that were not a part of the original biologic sample. In the day of the darkroom, altering images took so much skill that people regularly trusted them; now modern tools make it easy to make changes that are essentially untraceable. One can add bands to electrophoretic gels and add cells to photomicrographs. Scientific journals have defined policies for what is acceptable and what is not and making clear that adjustments must be disclosed.7
Are your images as valuable as you think they are? Probably not, unless you are a skilled photographer and extraordinarily organized and have a marketing plan.
The copyright laws are not going to protect our images. Applying regulations originally intended for industry to individuals doesn’t make sense (Cory Doctorow interview on copyright and electronic media (www.youtube.com/watch?v=TBf7ov031Ag&feature=related). Few of us are that litigious and have the time or desire to battle over something of relatively little value. Even fewer would maintain a vigil over their collection and make sure no one else uses any of its elements. The law is far behind the technology and cannot keep up with the rapidity of change, but we do have ethical codes to support us. We need to adhere to reasonably established guidelines and urge professional behavior for appropriate use of our digital image resources for publication and teaching. Anyone who puts an image on the Net has let it fly free for casual use. So if you put an image out there, have appropriate expectations—and at least make it a good image.
1. Branscomb AW. Who owns your image? Who Owns Information? From Privacy to Public Access. New York, NY: BasicBooks; 1994:73–91.
2. Jaszi P, Woodmansee M. The author effect: contemporary copyright and collective creativity. Cardozo Arts & Ent LJ. 1992;10:274.
3. Schlachter E. Intellectual property renaissance in cyberspace: why copyright law could be unimportant on the internet. Berkeley Tech LJ. 1997;12.
4. Memon N, Wong PW. Protecting digital media content. Commun ACM. 1998;41:35–43.
5. U.S. Copyright Office. Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code. 2011;26:1–366. www.copyright.gov/title17.
6. U.S. Copyright Office. Fair Use. Section 107, U.S. Copyright Law. 2012;1–2. http://www.copyright.gov/fls/fl102.html.
7. Macrina FL. Teaching authorship and publication practices in the biomedical and life sciences. Sci Eng Ethics. 2011;17:341–354.
Dr. Kurtycz, a member of the CAP Cytopathology Committee, is medical director, Wisconsin State Laboratory of Hygiene, Madison, and professor, Department of Pathology and Laboratory Medicine, University of Wisconsin School of Medicine and Public Health.