May/June 2007

Copyright: The Other Informed Consent
By John A. Riolo, PhD, LICSW

These days, virtually every social work, health, and mental health professional is aware of informed consent. We are taught its importance from our earliest professional education, and it is reinforced regularly in continuing education. Social workers do not hesitate to make every reasonable effort to obtain informed consent from clients to either provide services, conduct research, or disseminate information they have given us to third parties. We recognize that failure to obtain informed consent could be viewed as an aberration from our principle of self-determination and may contribute to poor outcomes, as well as ethical breaches and violations of law.

Yet, many social workers and other professionals routinely fail to obtain informed consent or permission from authors and publishers when they write, publish, or communicate with large groups of colleagues on the Internet, as required by common courtesy and law. Another way to look at copyright law is simply that if we are going to use substantial amounts of another person’s work, we need their permission—or informed consent. As with a patient’s participation in treatment or sharing his or her records, the copyright holder has the right to agree or refuse.

Why then, as a profession, do we strongly support informed consent and self-determination for our clients, yet many of us are oblivious to or disregard the self-determination and need to obtain informed consent of authors and publishers whose work we use in our professional communications?

Many social workers involved in publishing and editing attribute the issue to lack of understanding of the issues and the need for more education. “Most of us probably don’t think about it and may not even be aware of ‘intellectual property.’ A colleague with whom I had occasion to use the phrase asked me what I meant,” says Sheila Peck, LCSW, a writer, speaker, consultant, and clinical social worker in private practice in New York who also serves on the advisory board of the LIU/CW Post School of Social Work, and teaches at Hunter College School of Continuing Education in Social Work.

Technology troubles
Part of the problem may be that our professional education and training may not keep up with technology. Institutions of higher education, including schools of social work, have put an emphasis on educating students about the problems of plagiarism, which is generally seen as taking the work of another and presenting it as one’s own. We are encouraged to cite our sources and give credit when we quote. However, there is such a thing as quoting too much even if we give credit. Prior to computers, online journals, and Web-based news sources, quoting too much was self-limiting. It was too labor intensive to copy too much. However, with a computer, all you need is few clicks of a mouse and entire articles can by copied and uploaded anywhere to thousands of people without much thought or effort.

Nevertheless, when we copy or quote beyond a limited amount, it is a copyright violation if we did not obtain permission from the copyright holder, usually the original author or publisher. Determining what constitutes the reasonable amount someone can copy is difficult to pin down and could depend on many factors. Some organizations, such as The Associated Press, have indicated that to take more than approximately 25 words without permission could be a copyright violation. Others, such as Damon Kiesow, managing editor/online for The (Nashua) Telegraph, would apply a “substantial portion” formula, which in most cases means that a paragraph or two of a full article, along with a link, is permissible. However, much more than that can be problematic unless it is interspersed with specific commentary or rebuttal of points throughout the text so as to make it more like a new work that references the original, not an actual copy-paste of the full text.

Today, there are literally hundreds and possibly thousands of Internet groups and listservs frequented by social workers. Some are exclusively for social workers, while others are interdisciplinary. These groups utilize various hosts or servers. All have some terms of use or service stipulating rules that members of such groups should follow. All terms of use stipulate that members are to adhere to all applicable federal and international laws, including copyright laws.

However, due to the sheer number of groups and volume of content, it is impossible for a server to monitor all content; they rely on random checks and complaints. Therefore, it does not require too much searching to find full texts of articles uploaded without permission throughout the Internet by social workers and other mental health professionals.

While published copyrighted articles are uploaded daily, even the authors of manuscripts that have a clear statement stating, “This paper has been submitted for publication—please do not distribute,” will have no assurance that some discussion group member or moderator/owner will not upload their work to an Internet group without their permission.

From a review of the incidents and frequency of unauthorized uploaded copyrighted material to Internet discussion groups, there is no single explanation as to why social workers would do it. One could postulate that a lack of understanding of the law, an impetuous desire to share knowledge, a desire to impress one’s colleagues, a lack of empathy for the authors, a disregard of the informed consent of colleagues, or because they can—and think they can—get away with it could be reasons.

Some clearly do not know it is a problem and would refrain once they have been properly educated. In other cases, they may know about copyright but do not find copyright laws and conventions important enough to worry about. It’s a victimless crime from their point of view. And, at least as far as they can see, no one is getting in trouble for it, so why stop?

But people like Ed Coburn, publishing director of the health publications division of Harvard Medical School, cautions, “I think the ‘Wild West’ (of the Internet) days are drawing to a close, and there will be more and more enforcement. The recording and movie businesses already spend a lot of money on awareness-building and enforcement. Technology is making it possible to track sources of postings and track pass-along readers.”

If John Gile, compliance officer for the National Writers Union, has his way, there will be more education but also serious and rigorous enforcement. He argues for criminal prosecution of the most egregious copyright violators and has actually taken the U.S. Justice Department to court to try to get them to prosecute violators more aggressively under criminal statutes. He argues that the government has a responsibility under the Constitution to protect property, including intellectual property, just as much as physical or tangible property.

Surprisingly, the National Association of Social Workers Code of Ethics appears to be silent on the specific matter of respecting the property, intellectual or otherwise, of others. One would have to infer from other standards, but it could be a stretch to specifically find a section applicable to copyright violations. Nevertheless, whether we see more enforcement in the future or whether the term copyright will be rendered meaningless, it behooves all social workers to closely examine their behavior in this matter.

If we display a disregard for national and international laws, what does it say about us as a profession dedicated to social justice? If copyright laws are another variation of informed consent, what will our failure to obtain and respect the informed consent of authors and publishers convey to our clients and potential clients? Will they be more or less inclined to put their trust in us?

— John A. Riolo, PhD, LICSW, is a retired private practitioner, social work educator, and consultant who hosts educational Web sites and an Internet radio show for consumers and practitioners on www.psychjourney.com. His particular interest is commenting about how practitioners use the Internet, examining the positive and negative unintended consequences. His Web site is www.insiderlawethics.com.

References:

National Writers Union, www.nwu.org

Riolo, J. (2006). Intellectual Piracy. Available at: http://www.insiderlawethics.com/intellectual_piracy.html.

Riolo, J. (2003). What is Fair Use? Available at: http://www.insiderlawethics.com/fair_use.html