Scanning to add to a Blackboard course site

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 Also, unpublished work gets stronger protection, so that fair use, while still possible, is less likely.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.

Copying readings for students

Q – I have two journal articles that I want every student in my class to read. May I make enough copies for everyone and hand them out? What about putting them in the Library’s e-Reserves system? The Library subscribes to both of the journals from which the articles are taken.

Both of the suggested uses seem like fair use. But it is important to stress that fair use, which is an exception to copyright’s prohibitions that allows for socially desired uses, is very dependent on the specific facts of a situation. Without complete facts for each situation, any assessment of fair use must be tentative and illustrative only

The fair use exception to copyright allows for copying and distribution for a variety of uses. It lists several exemplary uses, including “multiple copies for classroom distribution.” Although this seems pretty clear, over the years publishing industry representatives have convinced academics to agree to some pretty restrictive guidelines (the guidelines are just that, they are not the law). The guidelines suggest that making
multiple copies and distributing them in class is appropriate only when the copied selection is brief and the use is spontaneous. So the first question is, are you copying only a single article from each of two publications? If that is the case, is this a one time use prompted by the fact that the articles fit very well into the current classroom topic? If
both answers are yes, brevity and spontaneity both apply and you are squarely within fair use.

These guidelines, however, especially that regarding spontaneity, are too restrictive for application to all academic situations, both because they over-interpret the law
and because they limit educational uses too much. The Perkins Library system has adopted an e-Reserve policy that does not include the spontaneity guideline. In other words, we allow articles to be put into the e-Reserve system even if they have been used in previous semesters and are not simply one-time reactions to specific classroom conditions. We believe this is still fair use because of the purely educational purpose
of these e-Reserves and because they do not have a substantial effect on the market for the original, since because only small portions are used, the material would not be required for purchase even if it were not available on reserve.

The bottom line, then, is that if these are single articles from journal issues (rather than photocopies of entire issues, for example) the library would likely put them into the e-Reserve system for you. If you are going to use the articles in subsequent semesters, that is probably the best way to go, since each copy is then made by an individual student for
his or her own personal use, rather than all being made and distributed by you. But in the meantime, making the copies and distributing them this semester seems like a fair use.

One more point is very important. If Duke already subscribes to an online database that contains either of these articles, the best practice by far is to simply link to that online version out of a course website or Blackboard page. Since the link will only work for authorized students, we will be complying with our license obligations and not posing any risk to the copyrights involved.

Writing an encyclopedia article

Q. I am writing an encyclopedia article and want to cull some facts from earlier articles on the topic. I will also quote a couple of passages from the same sources. Is there a copyright problem?

Facts are not protected by copyright law. The date or the place of my birth, for example, are facts in which I can not claim any copyright, nor can any person who writes my biography. In so far as you are simply harvesting facts from various sources and repackaging them, no copyright issue is raised.

On the other hand, the expression of a fact can be protected by copyright law. An author would have a copyright interest in a specific sentence recounting my birth, and that sentence can not be directly copied without infringement. So you should avoid copying the expression of the facts that you are harvesting.

One complication of this distinction between fact and expression is the “merger” doctrine, which says that when a particular fact can reasonably only be expressed in one way (so that fact and expression “merge”), no copyright in that expression will be recognized. A plain statement that “John F. Kennedy died in 1963” would be an example — there is little creative about it and the expression really does merge with the fact. On the other hand this sentence — “JFK’s assassination in 1963 was the tragedy that defined the second half of the century” — surely does contain enough original and creative expression to be protected.

If your use of facts gathered from other sources does not copy protected expression, even if it occasionally repeats some uncreative expression that merges with the bare facts reported, there is no copyright issue at all. The citation of the sources from which the facts were gathered is, of course, good academic practice, but it is not required by copyright law.

When you quote or paraphrase a judgment, opinion or estimation, however, you are certainly in the realm of copyright protected expression. If you paraphrase, copyright does not enter the picture, because the expression is not being copied. Plagiarism, of course, might be an issue, and you address it by citing the source. If a direct quotation is used, so that expression is copied, fair use is the exception that prevents an infringement of copyright. The use of small segments of protected expression for the purpose of research and scholarship is a universally recognized instance of fair use and authors rely on it all the time. Only when longer quotations, diagrams, pictures or data sets are copied does it really become necessary to get permission. In doubtful situations, publishers will usually err on the side of caution and want you to obtain permission, even when these citations are probably fair use.

Copyright exceptions for teaching

There are three exceptions to the exclusive rights in copyright that help serve educational needs:

Face-to-face teaching – Section 110(1)

Allows performance or display of protected material in a face-to-face teaching setting.

Must be in a classroom and at a non-profit educational institution.

Does NOT allow copying. This is an exception to the exclusive rights of performance and display, but not the right of reproduction.

Copying may still be allowed by fair use, however.

Performance and display in the classroom must employ a legally obtained copy – no “bootleg” copy is eligible for this exception, but borrowed copies are OK.

“Transmission” to registered students – Section 110(2), a.k.a. The TEACH Act
Allows digital copies in course management systems under a specific set of conditions.

Text and images may be transmitted (displayed) in amounts comparable to in-class teaching.

Music and video may be used in portions; entire songs may be used if “non-dramatic.”

Access must be restricted to students registered in the course, and notice that the material is protected must be given.

Technological measures to prevent the material from being retained after the course is over or copied to others are required. Streaming of music and video is a good way to meet this requirement.

The institution should have policies and educational programs about copyright in place to take advantage of this exception.

Fair Use – Section 107

A flexible exception that allows socially valuable uses of copyrighted material, including educational copying.

Fair use applies in many situations, but its application is never certain. A good faith decision in each situation is important.

Four factors are balanced to determine fair use:

  1. The purpose of the use should be for non-profit education. If the use adds to the original in some creative way (like commenting on a poem or making a parody), the fair use argument is stronger.
  2. Factual material is more susceptible to fair use; creative work like music and art gets stronger protection. Unpublished work also gets more protection
  3. Use only that amount of the original work that is necessary to accomplish the educational purpose.
  4. Avoid uses that substitute for purchasing available copies; damaging the market for the original counts heavily against fair use.

 

For a quick overview of what you can do with copyrighted material in the classroom, see the Know your Copyrights brochure from the Association of Research Libraries.

For more information about fair use, see this illustrative use case, the fair use checklist from IUPUI and/or the discussion of the four fair use factors from the University of Texas.

For more information about the TEACH Act, see the TEACH Act Toolkit from North Carolina State University.

Discussions about the changing world of scholarly communications and copyright