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Copyright and Fair Use

Page history last edited by PBworks 12 years, 9 months ago

Copyright and Fair Use 


The fair use of a copyrighted work 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, consider:

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

• the nature of the copyrighted work;

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

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

Briefly, these indicate that

1. The use must not attempt to "supersede the objects" of the original but rather be educational or critical.

2. The less of the original that is used in relation to the whole the more likely that use is fair, though the importance of the specific portion is also considered.

3. The use must not infringe on the copyright owner's ability to exploit her original work (for instance, by acting as a direct market substitute for the original work), though not through criticism or parody.



Brief attributed quotations of copyrighted text used to illustrate a point, establish context, or attribute a point of view or idea may be used under fair use.



There are a few blanket categories. The rule of thumb seems to be to use them “in good faith.”


Audio clips

Brief song clips (under 30 seconds) may be used. Spoken word audio clips of historical events, such as speeches by public figures, may be used when attributed to the speaker.



Questions & Answers on Copyright for the Campus Community

National Association of College Stores

A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:


1. A chapter from a book;

2. An article from a periodical or newspaper;

3. A short story, short essay or short poem, whether or not from a collective work;

4. A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper.

Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion, provided that:


1. The copying meets the tests of brevity and spontaneity as defined below; and

2. Meets the cumulative effect test as defined below; and

3. Each copy includes a notice of copyright.


Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words. (Each of the numerical limits stated in "i" and "ii" above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.)



The Digital Revolution, Copyright, and Publishing

However, all of this becomes more complicated by the digital revolution, as evident in issues of copying that started with the music industry (Napster) and is now facing the movie/video industry (is YouTube violating copyright act) and the publishing industry, as evident in debates about Google copying material from books or teachers’ use of online digital texts in their teaching as “e-reserves” or as copyrighted articles in distance education courses.


Q&A Concerning Copying Print and Digital Works


Please see the AAP FAQ’s on E-Reserves. These are available online at: www.publishers.org/press/releases.cfm?PressReleaseArticleID=204.

How do principles of “fair use” in copyright law apply to materials included in e-reserve systems?

The applicability of “fair use” principles to materials in e-reserve systems will, as in all “fair use” cases, depend on the particular facts and circumstances involved. For example:


1. If the use does not qualify as fair use when all of the four factors are analyzed (giving due weight especially to the impact of the use on the potential market for the original work), then it is a violation of copyright whether or not the provider of the material is a nonprofit educational institution.

2. If the amount of material from one work included in an e-reserve system is more than minimal, and the work itself can be readily purchased or licensed for use in an e-reserve system, the inclusion of that material in the e-reserve system is not likely to constitute “fair use” because its inclusion—when considered under the statutory factors—would have a direct, negative effect on the “potential market” for the sale or licensing of the work.

3. If e-reserve postings are used to substitute for the purchase of books, or for the purchase or licensing of other copyrighted materials that would be used in course work, their use is not likely to constitute “fair use.”

4. There is no “first-time” exception in fair use; if use of the content does not qualify as fair use, it should not be used as such, even once.



Issues with Digital Rights Management

As is the case in the music and film industry, the publishing industry or “Big Content”—much of which is now owned by corporate conglomerates interested primarily in bottom-line profits, are moving towards developing ways of controlling and limiting access to digital copyrighted material through was is known as “digital rights management.” DRM can be used to give access to digital texts by requiring users to pay for the content.


Dames, K. M. (2006). Framing the copyright debate. Information Today, 23(8).

Deconstructing the Frame of DRM


To keep people from not paying for another digital copy, Big Content devised another strategy (DRM) to control access to and use of a digital work…Big Content has reinforced this frame by convincing Congress to pass the Digital Millennium Copyright Act, which generally makes it illegal to bypass or crack DRM for any reason, even if that DRM interferes with a proper, legitimate use of the work that would otherwise be allowed through the copyright exceptions found in Sections 107-122.


Bailey, C. W. (2006). Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia? Information Technology and Libraries, 25(3), 116-127.

As libraries realize that they cannot afford dual formats, their new journal and index holdings are increasingly solely digital. Libraries are also licensing a growing variety of "born digital" information. The complexities of dealing with license restrictions for these commercial digital products are well understood, but imagine if DRM was layered on top of license restrictions. As we have discussed, DRM will allow content producers and distributors to slice, dice, and monetize access to digital information in ways that were previously impossible.


What may be every publisher/vendor's dream could be every library's nightmare. Aside from a potential surge of publisher/vendor-specific access licensing options and fees, libraries may also have to contend with publisher/vendor-specific DRM technical solutions, which may:

* depend on particular hardware/software platforms,

* be incompatible with each other,

* decrease computer reliability and security,

* eliminate fair or otherwise legal use of DRM-protected information,

* raise user privacy issues,

* restrict digital preservation to bitstream preservation (if allowed by license),

* make it difficult to assess whether to license DRM-protected materials,

* increase the difficulty of providing unified access to information from different publishers and vendors,

* multiply user support headaches, and

* necessitate increased staffing.


The Problem with Getting Permissions for Use of Digital Texts

One of the problems with increasing control of the publishing industry is that they require written permissions for use of copyrighted digital texts. However, as some research indicates, it is difficult, if not impossible to obtain permissions. The following study found that only a same percentages of permission requests were granted:


Haigh, S. (2006). Obtaining Copyright Permission to Digitize Published Works Remains a Significant Barrier. Evidence Based Library and Information Practice, 1(2).

A review of: George, C. A. (2005). Testing the Barriers to Digital Libraries: A Study Seeking Copyright Permission to Digitize Published Works. New Library World, 332-342. This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.

Objective – To assess the effectiveness and efficiency of the copyright permission seeking

process and to suggest improvements in order to improve outcomes.

Design – Workflow study.

Setting – Carnegie Mellon University Libraries, Pittsburgh, PA, USA.

Sample – A random sample of titles published 1999-2001 was selected from the library’s circulating collection. After eliminating duplicates, technical reports, theses, dissertations, and missing items, thesample comprised 337 titles. Of these titles, 70% were books, and 56% were from commercial publishers. From this a working sample of 273 titles was derived, comprising those titles protected by copyright and with the rights owner clearly indicated. About 73% of this working sample appeared to be out-of-print; their median publication year was 1981.

Method – In this two year study (1999-2001), a random sample of books was selected, and

pertinent bibliographic and copyright holder information researched and recorded. Permission letters were sent and, six weeks later, follow-up letters were sent to nonrespondents.

The letter allowed respondents four options:

1. Grant full permission to digitize the work and provide unrestricted Web access;

2. Grant permission to digitize the work and provide read-only Web access, limited to Carnegie Mellon University users;

3. Declare that they do not hold the rights, and hopefully provide information to identify and locate the actual rights holder;

4. Deny permission for digitization.

Results were then recorded and analyzed.

Main results – Of the 273 letters mailed, a clear ‘yes’ or ‘no’ reply was obtained for just over half (52%) of the documents. Sixteen percent of the rights holders could not be found (the letter was returned, or a referral proved impossible to locate and contact). Another 25% of the copyright holders simply did not reply, and 7% were otherwise problematic. Of the 143 ‘yes’ or “no” responses, 54% denied permission, while 46% granted permission. (Note: these

percentage figures appear to be erroneously reversed in Table 1 of George’s article.)

Therefore, of the overall working sample of 273 titles, permission to digitize was obtained for only 24% of the titles. A substantial portion of the permissions (41 of 66, or 62%) carried some restriction. This represents 15% of the total working sample. Only a few restriction requests were deemed too great to make use of the permission. Commercial publishers who made up 58% of the working sample granted permission at the lowest rate (13%).

Response time averaged three months from the time the initial letter was sent until a “yes” or “no” response was received. Negative responses averaged a bit longer than positive responses (101 days to 124 days). However, some of this time was attributable to delays in issuing follow-up or redirected request letters (a step required in 60% of cases), owing to the limited staff resources at Carnegie Mellon.

The copyright ownership had changed in 23% of the sample, requiring more than one and up to three different addresses to becontacted before a response was received orthe effort was terminated.


Conclusions – The study concluded that the permission rate would remain low unless additional efforts were made in the permission-seeking process (e.g., personal contacts in addition to letters and emails), or unless more selective approaches were employed (e.g., targeting non-commercial publishers). It also concluded that the process to seek copyright permissions was neither quick nor easy, suggesting the need for dedicated staff time and a readily accessible database of publisher contact information. As a result, subsequent projects have improved their permission-seeking process, focusing on more noncommercial publishers or older publication dates, and asking publishers for blanket consent for all of their out-of-print titles.



The useful data developed by this study is based on a broad working sample of published material and helps to identify the least amount of staff effort needed to obtain permissions. Some context as to U.S. copyright law might have been useful.

There is an assumption that all readers are aware of U.S. copyright law, including length of copyright. While the study methodology was appropriate, there were a couple of gaps in data, pertaining particularly to staff time. First, the time it took to examine the original random sample of 337 titles and research copyright holders (in order to conclude that some would not be able to be located) did not seem to be factored into the overall consideration of staff time required. Then, once the working sample was determined, the first step in the process was to determine the identity of the copyright holder and obtain contact information. How much time did this take on average? It is described as “considerable”, but not quantified. The author does mention that it would be helpful in future projects to monitor the staff time expended on each step of the process. But without such data, the study’s aim to determine efficiency cannot be fully explained.


The low rate of permission to digitize (24%), the relatively high rate of restrictions (62%), and the high rate of non-response (up to 30% for some publisher types) are all

notably discouraging findings. As Google has discovered with its Google Print Library project and the U.S. Authors Guild lawsuit which it occasioned, copyright remains a major obstacle to building comprehensive retrospective digital collections of published material.


And yet, as the author notes, there is a growing demand for digital information. Carnegie Mellon has determined to continue its efforts, but with a honed approach. Over

time, this will build critical mass, but inevitably (and unfortunately) the resulting collections will fall short on more recent and more commercial titles. There is no discussion of whether the demands and priorities of students and faculty will be met by the revised scope of the library’s

digitization effort.


The author does not comment on the fact that many publishers denied permission, even, presumably, for long out of print titles, or that many publishers simply chose to ignore permission requests. The conclusion does mention that one of their subsequent projects, the Million Books Collection, which presumably employs their refined approaches and strategies, achieves a 54% permission rate—an improvement, but hardly ideal.


Those seeking to digitize copyright library material may want to think twice about doing so after reading this study. If they persist, its findings provide some guidance toward setting realistic expectations and timeframes, as well as pragmatic workflow processes, for optimal success.


Gehring, R. A. (2006). Trusted Computing for Digital Rights Management. INDICARE Monitor 2(12). Retrieved November 27, 2006 from http://www.indicare.org/tiki-read_article.php?articleId=179


Godwin, M. (2006). Digital Rights Management: A Guide for Librarians. Washington, D.C.: Office for Information Technology Policy, ALA, 2006), 1, www.ala.org/ala/washoff/WOissues/copyrightb/digitalrights/DRMfinal. pdf



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