Q – Are there rules about what articles and other text I can scan myself and make available to students using my Blackboard course management website?

Yes. Every use of copyrighted material in a course management website should be evaluated as a fair use. When a fair use analysis does not support the use, either permission should be sought or some other material that is not subject to copyright substituted. In general, material that could not be used in print without permission also may not be used in a course web site without permission.

Fair use is a balancing test, and there is no certain way (short of a law suit) to know that a particular use is a fair use. To address this uncertainty, the copyright law provides that when employees of a non-profit educational institution make a good faith judgment about fair use, they are protected from most of the damages that a copyright owner could collect if they are found to be mistaken. So thinking about fair use and making a reasoned and defensible decision about it, is very important.

When we make a fair use determination, we have to balance four factors. No one factor, nor any specific combination of factors, is decisive in this analysis; we simply look at all four and decide if the overall balance favors fair use or if it points us toward seeking permission. It is generally agreed, however, that the first and fourth factors usually carry the most weight in the analysis.

The first factor is the purpose and character of the use. Educational uses favor a finding of fair use, whereas commercial uses count against fair use. Nevertheless, even a commercial use may be found to be fair if it is transformative, which means that it creates a new work with its own social value out of materials borrowed from the original. Comment and criticism, as well as parody, are often regarded as transformative uses.

The second factor looks at the nature of the original work. It is easier to make a fair use of factual or non-fiction material than of highly creative work. Also, unpublished work gets stronger protection, so that fair use, while still possible, is less likely.

The third factor is the amount of the original work that is used; the more of the work that is taken, the less likely a finding of fair use is. The best practice is to use no more of a copyright-protected work than is necessary for the educational purpose you are pursuing. Please note that the library’s electronic reserves system suggests that no more than 10% of a whole work should be used in order to comply with fair use. It is also important to know that this factor may count against fair use if the “heart” of a work – its central message or point – is taken, even if the percentage of words copied is quite small.

The fourth factor is impact on the market for the original. In the context of course management systems, this means that scanning and distribution of articles or portions of books should never be used to substitute for having students purchase the original work. Such distribution should only be used for short readings from books that would not be assigned for purchase if the Blackboard system were unavailable. If a book is out-of-print but still in copyright protection and students will need to read a large portion of it, permission should be sought.

A Fair Use Checklist is available for help in making a fair use determination, as is a detailed discussion of the fair use factors from the University of Texas. You can also find more fair use scenarios for course management systems from UNC.

 

7 Responses to Scanning to add to a Blackboard course site

  1. Neal Caidin says:

    Could you give an example of this “unpublished work gets stronger protection”? My initial reaction is “how would one have access to a work that is not published?”.

    Clarification would meet my need for curiosity.

    Thanks.

  2. Kevin Smith says:

    It is much more difficult, but not impossible, to argue fair use for an unpublished work. Courts have long said that there is a strong presumption that an author has the right to decide when and if a work should be made public for the first time. Since most fair uses would involve publishing a work in some way without the authorization of the author, courts are very reluctant to find that an unpublished work was subject to a legitimate fair use. It is not impossible, based on a balancing of the four fair use factors, when small amounts of unpublished material are used in a way that is transformative and/or has a very high social value, such as great newsworthiness. But being unpublished will always count against fair use as part of the “nature and character of the work” factor in the fair use analysis.

    A common example of an unpublished work to which you might have access is a letter sent to you by someone else. Although you own the physical object, the copyright is owned by the author, who could object to a reprint of the letter in a book or on a website. A fair use defense in such a case would be difficult, although, as I said, not impossible.

  3. Juliet says:

    Also, if a web designer is an independent contractor paid to design a web site, then the designer owns the creative copyright when complete. If the designer is an employee of the person / company that the website is ordered by, then the company / employer owns the copyright unless otherwise expressed in writing.

  4. Kathleen Wallace says:

    If I understand it properly, fair use is a positive defense rather than a “right” so theoretically one could be sued even if one thinks that one’s use meets fair use standards. Moreover, DMCA seems to increase the probability of being sued with respect to digital material, whether or not there is a strong or reasonable fair use defense that could be made. The current environment is making it increasingly difficult to rely on fair use in a reliable way it seems to me.

  5. J.Stafford says:

    If you want to know if anyone is using your content without permission, you can use copyscape.com . I found an attorney who had plagiarized the entire home page of DUISanDiego.com and just changed the location “san diego” to “san jose” and the name.
    I sent him a cease and desist letter with the copyscape results, and he took the plagiarized content down.

  6. Carla Antonaccio says:

    What about articles available through JSTOR to registered users (i.e. student logged on through Duke), and other materials that are available through the library (e.g. Cambridge’s UP’s extensive reference library for classical studies)? Is it kosher to link to those through Blackboard? I have assumed so.

    • Kevin Smith, J.D. says:

      Linking to this material, for which the Duke Libraries have already paid licensing fees, is always appropriate.