This blog post is intended to provide an overview of copyright and fair use for medical communicators. For advice specific to your situation, seek counsel from authorized experts.
Can medical communicators share an article from a medical journal with colleagues? What about reusing a graph from a published paper? What is fair use, and how do you know the difference between noncommercial and commercial use?
The answers to these questions are not cut and dried. Many people become confused when navigating various types of permissions and copyright protections, but understanding some basic copyright principles can help, whether you work as a freelancer or an employee in medical communication.
Understanding Copyright and Fair Use Basics
What Is Copyright?
Copyright gives the owner of an original work the right to control how that work is reproduced, distributed, or otherwise used.
The copyright holder may not be the person who created the work. Copyright can be assigned to someone else. For instance, the hiring party may own the copyright in cases of works made for hire. Many scientific journals and publishers also require authors to transfer copyright or grant publication rights. For example, the American Medical Association (AMA) owns the copyright to many articles published in the Journal of the American Medical Association (JAMA).
In the AMWA recorded webinar Demystifying the Copyright Conundrum: Literature Sharing, Open Access, and AI, subject matter expert Jill Shuman, MS, ELS, explains copyright reuse protocols for medical communicators and offers insights on how to use and share copyrighted materials in an ethical and compliant manner.
According to Shuman, about 60% of the time the creator of the work is not the copyright owner; authors sign over copyright to publishers, limiting their control over how their work is shared or reused.
What Is Fair Use?
Copyright law includes exceptions that may allow certain uses of copyrighted material without the owner's permission. Fair use exceptions apply in limited circumstances, including criticism, comment, news reporting, teaching, scholarship, and research.
Several factors determine whether a particular use qualifies as fair use. Fair use is not a blanket exemption from copyright requirements, and whether it applies depends on the circumstances of each use.
How to Determine Fair Use
The U.S. Copyright Office identifies four factors to consider when determining whether a particular use of copyrighted material qualifies as fair use:
- Purpose and character of the use, including whether it is commercial or nonprofit educational use
- Nature of the copyrighted work
- Amount and substantiality of the portion used in relation to the work as a whole
- Effect of the use on the potential market or value of the copyrighted work
No single factor determines whether a use qualifies as fair use. Courts consider these factors together based on the circumstances of each use. As with any legal matter, consult an attorney for guidance on specific copyright questions.
What Content Is Protected by Copyright?
What Is Covered?
Copyright protects many types of creative and intellectual work. For example:
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Videos
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Music
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Internet content, such as websites
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Open access journal articles
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Traditional publisher journal articles
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Scientific posters
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Blog posts
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Podcasts
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Patient questionnaires and scales, which may have their own copyright or licensing requirements
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Cartoons
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Computer code
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Software programs
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Technical standards
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Artwork
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Sculpture
What Is Not Covered?
Exceptions to copyright protection are:
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Something not fixed in a tangible medium, like an idea
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Facts in data, meaning you cannot reproduce a table as presented, but you can use the facts within it to create another image
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Works prepared by U.S. federal government employees as part of their official duties
When Do You Need Permission to Use Copyrighted Material?
Personal Use vs. Sharing
If you purchase or lawfully download an article, you can generally read it and keep a personal copy. Copyright questions usually come up when you want to share that article with someone else or reuse it in another format. Most sharing of copyrighted materials requires permission, even if you are just sharing within your organization or company.
What if you are a medical writer working at a pharmaceutical company and want to share an article with a group of project managers? According to an example Shuman shared, you would need to seek permission from the publisher. Some large firms, however, have copyright licenses that allow the sharing of materials in this way. That is often arranged through the company’s librarian or IT department.
Continuing Education Content
In the AMWA Engage community, a medical writer asked whether using materials for continuing professional education would qualify as fair use, sparking a lively discussion.
For example, what if you are creating a presentation on a disease state and 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, seeking permission from the copyright holder may be the safest approach.
Commercial vs. Noncommercial Use
Whether a use is commercial or nonprofit educational is one factor courts consider when determining whether a use qualifies as fair use. Nonprofit educational or noncommercial uses may weigh more favorably in a fair use analysis, but they do not automatically qualify as fair use. Likewise, commercial use does not automatically disqualify material from fair use.
The U.S. Copyright Office provides additional information in its FAQ: “Can I Use Someone Else’s Work? Can Someone Else Use Mine?”
Client Considerations
When working with an educational entity or nonprofit, medical communicators may encounter questions about whether a particular use qualifies as fair use.
When in doubt, ask permission. If you are working on behalf of a client or organization, learn its policy regarding fair use and educational materials, and clarify the client’s expectations.
Open Access and Creative Commons
Open Access Publishing
Open access (OA) publishing makes scholarly articles available to readers without subscription or paywall barriers. Depending on the journal and publishing model, authors may retain copyright and publish under a license that specifies how others may share or reuse the article.
In many OA models, publication costs are covered through an article processing charge (APC) paid by the author, institution, funder, or sponsor. APCs, copyright policies, and reuse permissions vary by journal and publisher, so medical communicators should always check the article’s license terms before reusing or sharing OA content.
Open access publishing is not the same as predatory publishing, or pseudoscientific journals, which short-circuit the important peer review process. In a joint statement, AMWA and other professional associations condemn the practice of predatory publishing.
Creative Commons Licenses
When authors publish in open access journals, they may choose a Creative Commons license that specifies how others may use their work. Creative Commons offers six main license types, with different requirements for attribution, commercial use, and adapting or sharing the work.
Before using or sharing material under a Creative Commons license, check the specific license terms. Some licenses allow commercial use or adaptations, while others restrict them. For more information on specific licenses and their permissions, visit Creative Commons.
When using or sharing open access content, check the copyright and license details to understand how you can use it and whether you need to provide attribution. This information is typically found on the article, the publisher’s website, or with the article's licensing information.
Copyright Compliance Tips for Medical Communicators
The following tips can help medical communicators navigate copyright compliance.
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Check who owns the copyright before seeking permission. For example, if you want to reuse an article from JAMA, the copyright holder may be the journal or publisher rather than the author.
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Find out whether your company has an agreement with publishers or other copyright holders that allows you to access, share, or reuse certain copyrighted materials.
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Check for copyright restrictions if you search for images on Google. Use the “Usage rights” filter to find images with reuse permissions, and review the license before using them.
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Learn where to find images that can be legally reused.
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Create a new figure using the underlying data, rather than copying the original image, if permission is difficult or expensive to obtain.
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Use PubMed Central to find and download articles, but don’t assume that everything there can be shared. You still need to check to see what kind of license the article was published under.
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Do not use Sci-Hub or unauthorized file-sharing sites to access or share copyrighted articles without permission.
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Confirm that you have permission before embedding a YouTube video in a slideshow, posting a commercial podcast on your company site, or creating multiple reprints of an article.
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When in doubt, check with the owner of the content before reusing or sharing.
“Copyright compliance is…about doing your best to ensure that you have permission to use or reuse content in a manner consistent with the way the owner wants it to be reused—and in many cases, that is a single copy that is not to be shared unless you ask for permission to do so.” says Shuman.
Copyright and Professional Responsibility
Respecting copyright protections is part of ethical and professional medical communication. 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.
Learn More About Copyright and Fair Use
For medical communicators looking to learn more about copyright and the ethical sharing of material, the following resources are available.
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The U.S. Copyright Office provides information on copyright law, registration, fair use, and other copyright topics.
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Copyright Clearance Center provides copyright licensing and permissions services.
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The Directory of Open Access Journals is a clearinghouse for open access scholarly articles worldwide.
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Creative Commons has information on licenses and tools.
AMWA has course offerings that explore copyright issues.
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Demystifying the Copyright Conundrum: Literature Sharing, Open Access, and AI
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The Challenges of Copyright in the Internet Age, a free members-only video that teaches the basics of U.S. copyright law, explores fair use, and explains how to obtain copyright permission
Putting Copyright Knowledge Into Practice
Copyright and fair use are important parts of ethical and professional medical communication. By understanding copyright requirements and following best practices for using and sharing content, medical communicators can protect creators' rights and maintain professional standards.
AMWA acknowledges the contributions of Kathy Adamson, DVM, for review in the development of this AMWA resource.
