Copyright & Fair UseDistinguishing Fact from Fiction

Meghan Damour, 2017 MLIS Candidate & InternBen Harnke, Education & Reference Librarian

John Jones, Instruction & Curriculum Librarian

Health Sciences Library | University of Colorado Anschutz Medical Campus

Things we wonder about• Is anyone giving out paper

handouts?• Is anyone using the library’s online

reserves system?• Is anyone using YouTube or other

online multimedia?• Has anyone contacted the library

about purchasing online materials?• Has anyone used the Interlibrary

Loan program?

What are your questions?

Copyright & Fair Use: What Is It?• What is copyright? What is its purpose?• What is fair use?• How does fair use relate to copyright?• Why are librarians talking about this?• How can we make our own fair use

evaluations?

17 U.S. Code § 107 - Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

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; and4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

(Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2546; Pub. L. 101–650, title VI, § 607, Dec. 1, 1990, 104 Stat. 5132; Pub. L. 102–492, Oct. 24, 1992, 106 Stat. 3145.)

Copyright & Fair Use: Putting It In ContextSome scenarios for your consideration…

SCENARIO: Can I upload articles into Canvas?You’ve got a variety of full-text PDFs of journal articles which are required reading for your course. Is it fair use for you to upload these for the students to access?

What kind of articles?• 10 articles downloaded from

library subscriptions• 3 articles from interlibrary loan• 2 printed articles that need to be

scanned if e-versions can’t be found

PurposeFavoring Fair Use

Teaching (including multiple copies for classroom use)

Research Scholarship Nonprofit educational institution Criticism Comment News reporting Transformative or productive use

(changes the work for new utility) Restricted access (to students or other

appropriate group) Parody

Opposing Fair Use Commercial activity Profiting from the use Entertainment Bad-faith behavior Denying credit to original author

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

NatureFavoring Fair Use Published work Factual or nonfiction based Important to favored educational

objectives

Opposing Fair Use Unpublished work Highly creative work (art, music,

novels, films, plays) Fiction

the nature of the copyrighted work

AmountFavoring Fair Use Small quantity Portion used is not central or

significant to entire work Amount is appropriate for favored

educational purpose

Opposing Fair Use Large portion or whole work used

Is one article a whole work? Portion used is central to or “heart

of the work”

the amount and substantiality of the portion used in relation to the copyrighted work as a whole

EffectFavoring Fair Use User owns lawfully purchased or

acquired copy of original work One or few copies made No significant effect on the market or

potential market for copyrighted work No similar product marketed by the

copyright holder Lack of licensing mechanism

Opposing Fair Use Could replace sale of copyrighted work Significantly impairs market or potential

market for copyrighted work or derivative Reasonably available licensing

mechanism for the use of copyright work Affordable permission available for using

work Numerous copies made You made it accessible on the web or in

other public forum Repeated or long-term use

the effect of the use upon the potential market for or value of the copyrighted work

EVALUATION: Can I upload articles into Canvas?

PURPOSE Nonprofit educational institution Criticism/comment Restricted access (Canvas has both restricted and unrestricted

capabilities)

NATURE Published work Factual or non-fiction Important to favored educational objectives

AMOUNT Small quantity (What should we consider “small”?) Amount is appropriate for favored educational purposeX Large portion or whole work used (Is one article a whole

work?)X Portion used is central to the “heart of the work” (What is the

“heart” of an article?)

EFFECT User owns lawfully purchased or acquired copy of original

work (Library license, Interlibrary Loan, a paper copy from your filing cabinet?)

One or few copies made (5 or 500?) No significant effect on the market or potential market for the

workX Reasonably available licensing mechanism for use of the work

(What is “reasonable”?)X Affordable permission available for using the work (What is

“affordable”?)X Numerous copies made? (5 or 500?)X You made it accessible on the web or another public forum

(Behind a login? On a public blog?)X Repeated or long-term use (What is long-term?)

SCENARIO: Can I distribute articles in journal clubs?You are a member of a journal club with a few faculty and students from your department, as well as several researchers from other institutions around the state. You want to share your article for the month with the members of the journal club.

Are you within your Fair Use rights to send PDFs of the articles to all the members of the club?

Does the library licensing have an impact on this?

EVALUATION: Can I distribute articles in Journal Clubs?

PURPOSE Research/scholarship Nonprofit educational institution Criticism/comment Restricted access?

NATURE Published work Factual/non-fiction Important to educational objectives?

AMOUNT Small quantity (if we consider a “whole work” to be a

full issue of a journal) Amount is appropriate for favored educational purposeX Large portion or whole work (if we consider a “whole

work” to be a single article)X Portion used is central/”heart of the work”

EFFECT User owns lawfully acquired copy One or few copies made (How many members in the journal

club?) No significant effect on the market or potential market for the

workX Could replace sale of copyrighted workX Reasonably available licensing mechanism for use of the work

(What is “reasonable”?)X Affordable permission available for using work (What is

“affordable”?)X Numerous copies made? X You made it accessible on the Internet (emailed to colleagues

or posted on a public page? PDFs or links to institutional holdings?)

SCENARIO: Can a researcher reuse his methods section in more than one article?

You’ve worked on your research project for the last 2 years and have published one article from your data so far. You have some other interesting or significant findings which you’d like to write about in other manuscripts for publication.

Your methodology or methods section would be the same for all of these papers. Can you simply reuse your methodology from one paper to the next?

Can collaborative authors reuse?Or does the journal which published your first article own the copyright to your methodology?

Can a researcher reuse his methods section in more than one article? Trick question!What is not protected by copyright?1. Ideas, methods, or systems

Ideas, methods, and systems are not covered by copyright protection. According to the US Copyright Office, Circular 2, this covers quite a few things including making or building things; scientific or technical methods or discoveries; business operations or procedures; mathematical principles; formulas/algorithms; or any other concept, process, or method of operation.Includes recipes, formulas, compounds & prescriptions.

What are some other things not protected by copyright?2. Commonly known information3. Choreographic works4. Names, titles, short phrases or

expressions5. Fashion6. Government works

SCENARIO: Can I provide print or electronic articles for the Continuing Education class I am offering at my regional or national professional meeting?

You’d like to distribute paper or electronic copies of articles in a CE class your are teaching for your national society. Does this tip toward or away from Fair Use?Is there a difference between paper vs. electronic copies?

EVALUATION: Can I provide print or electronic articles for the Continuing Education class I am offering at my regional or national professional meeting?

PURPOSE Teaching Scholarship? Nonprofit educational institution? Criticism/comment? Restricted access (Thumb drive with articles or paper copies?)X Profiting from the use? (Monetary or otherwise?)

NATURE Published work Factual or non-fiction Important to favored educational objectives?

AMOUNT Small quantity? Amount is appropriate for favored educational useX Large portion or whole work used? X Portion used is central to the work

EFFECT User owns lawfully acquired or purchased copy of original

work? No significant effect on the market or potential marketX Reasonable available licensing mechanism for use?X Affordable permission available?X Numerous copies madeX You made it accessible in a public forum?

SCENARIO: Can I use a table from another study in my manuscript?You are preparing a manuscript for publication. You would like to comment on the results obtained in another published study. You have written the lead author and asked permission to reproduce the table in your manuscript. The author has denied your request. How would you proceed?

What about photographs or illustrations?

EVALUATION: Can I use a table from another study in my manuscript?PURPOSE

Research Scholarship Nonprofit educational institution? Criticism Comment Transformative use?

NATURE Published work Factual/nonfiction

AMOUNT Small quantity Amount is appropriate for educational purposeX Portion is central to the work?

EFFECT User owns lawfully acquired copy No significant effect on the market or potential market for the copyrighted workX Impairs market or potential market for the work?X Numerous copies made? X Made accessible on the web? X Repeated or long term use?

SCENARIO: Can I use a YouTube video in my talk?You will be presenting at a major conference in your field. As part of your presentation you want to embed a video you found on YouTube. Are you within your Fair Use rights to do so? What if you link to the YouTube video in your slide?

What if you want to edit the clip, or splice a few clips together into one video?

EVALUATION: Can I use a YouTube video in my talk? •Purpose Teaching Research Scholarship Nonprofit educational institution? Criticism/comment? Restricted access?•Nature Published work Factual or nonfiction? Important to educational objectives?X Highly creative work?

•Amount Portion used is not central to the work? Amount is appropriate for educational

objectives? X Large portion or whole work used? X Portion used is the heart of the work? •Effect Lack of licensing mechanism

Was the original material legally acquired?

Some final thoughts…• Fair use is not really black and white until a court case is decided, but there are some scenarios we

can be pretty sure about, particularly in educational settings.

• Be aware of your rights and responsibilities. Avoid making assumptions. Ask for permission when possible—but remember that under Fair Use, you can still use the material even if the owner says no.

• Linking to original source material is always preferred. Informative/purposeful use is always better than decorative/aesthetic use.

• Cost-benefit analysis/risk tolerance:• What might happen if someone gets upset about my use of this material? Who might object to my use of this material?

• Am I comfortable defending my use of the material or am I potentially doing something questionable?

• What kind of clout and resources might the objecting person/group have? Would it be worth it to fight them in court, even if I feel that I’m right?

• Is this particular material that important to me, or could I use something else that I know I have rights to?

• If what I’m doing is NOT fair use, then what IS fair use?

• “Show your work.”

• USE FAIR USE… or it will go away.

Copyright & Fair UseDistinguishing Fact from Fiction

Meghan Damour, 2017 MLIS Candidate & InternMeghan.Damour@ucdenver.edu | 303-724-2130

Ben Harnke, Education & Reference LibrarianBen.Harnke@ucdenver.edu | 303-724-2146

John Jones, Instruction & Curriculum LibrarianJohn.Jones@ucdenver.edu | 303-724-2117

Health Sciences LibraryUniversity of Colorado Anschutz Medical Campus