Do I Need Permission? Understanding “Fair Use” in Medical Communication

Do-I-Need-Permission-Understanding-Fair-Use-in-Medical-CommunicationCopyright law is complicated, and we’re not legal experts.

However, one of the most important aspects of copyright law as it pertains to medical communicators is called “fair use.”

In general, copyright protects the intellectual property of creators like artists and authors, but there is an important exception made when material is used for educational purposes or for other reasons that distinguish it from a profit-generating use.

Because fair use is often misunderstood, medical communicators should have a basic understanding of copyright law and how fair use is applied.

Understanding Copyright and Fair Use

Copyright is the ownership of the right to reproduce a literary, dramatic, artistic, or musical work. When it comes to medical communication content, sometimes authors and artists retain the copyright. At other times, authors waive their rights or transfer them to another entity. 

There are some important exceptions to copyright limitations, and one of those is fair use.

Copyright Defined

The U.S. Copyright Office provides a thorough explanation of copyright on its website

The following is the Copyright Office’s official definition of copyright: 

“(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”

Note: We can reproduce the preceding passage because of another notable exception to copyright law: Copyright protection is not available for “any work of the United States Government.”

Fair Use Exception

Section 107 of the Copyright Law of the United States lists the limitations on “exclusive rights” known as fair use. The exception is designed to make it easier to reproduce language or visuals in certain cases. Fair use means that it is not an infringement of copyright if you reproduce a work for any of the following purposes: 

  • Criticism

  • Comment

  • News reporting

  • Teaching (including multiple copies for classroom use)

  • Scholarship

  • Research

Several factors determine whether something falls under the fair use exclusion.  

As always, when dealing with legal matters, it’s a good idea to consult an attorney. A copyright lawyer is experienced in navigating the hundreds of sections that make up U.S. copyright law.

How to Determine Fair Use

The Copyright Office lists the following factors that are considered when determining whether something is being reproduced for fair use.

“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.”

Copyright law doesn’t seem to care whether a work is published or not; it still applies.

What About Continuing Education Content?

In the AMWA Engage community, a lively discussion arose when a medical writer wondered if materials used for continuing professional education are considered fair use. 

For example, what if you are creating a presentation on a disease state and you come across images or graphics that would work well in your slide deck? If the purpose of the deck is education, even if the client is a commercial entity, does fair use apply? 

If the presentation is for a commercial entity such as a pharmaceutical company, the short answer is “seek permission.” Commercial entities need to request permission from the copyright holder before reproducing materials.

Another route suggested in a robust conversation from the AMWA Engage community is to use noncopyrighted materials or seek Creative Commons images. Creative Commons has more than 600 million items available under their licensing agreements.

Consider the Client

When working with accredited educational entities or nonprofits, medical communicators are more likely to encounter situations where fair use comes into play. 

However, pharmaceutical companies, even when they are creating educational materials, are still considered commercial entities.

The key to all of this is knowing when it is appropriate to reproduce a passage or image and when to seek permission from the copyright holder.

When in doubt, ask permission. If you are working on behalf of a client or organization, learn what their policy is regarding fair use for educational material, and get clear on the client’s expectations.

Why Should We Care?

We care about copyright and fair use because we believe that creators should be fairly compensated for their work and intellectual property. 

Of course, copyright law is law, and the first principle of the AMWA Code of Ethics states that “Medical communicators should recognize and observe statutes and regulations pertaining to the materials they write, edit, or otherwise develop.”

Copyright and fair use can be complicated, but with some basic knowledge, medical communicators can support their clients and colleagues in asking the right questions and obtaining appropriate permissions.

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August 8, 2022 at 9:00 AM

American Medical Writers Association

AMWA is the leading resource for medical communicators. The AMWA Blog is developed in partnership with community members who work every day to create clear communications that lead to better health and well-being.