Copyright, Fair Use, and Library Reserves
The Libraries adhere to US copyright law (title 17 of the US Code). Section 107 of the copyright law, the Fair Use Doctrine, provides the guiding principle behind the Libraries' reserve collections. Section 108 deals with reproduction by libraries and archives, and may, in some cases, have bearing upon our ability to use photocopies for reserves.
Fair Use information
What is Fair Use?
Fair use is stipulated in section 107 of Title 17 of the U.S. Code. It states:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies of 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:
- 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 relationship to the work as a whole.
- The effect of the use on the potential market for the work.
For some more help thinking about how your class materials fit into this complex section of the copyright law, you might visit the Columbia University Copyright Advisory Office site.
Is there a way to determine fair use?
We can't tell you with 100% certainty what is or is not fair use. One instrument that is helpful is the Colombia University's fair use checklist. We recommend you use this checklist in analyzing fair use and then sign the reserve request form statement indicating you have believe the materials fall within fair use. If the fair use analysis leads you to believe that reserve use isn't fair, you need to ask for permission.
The UO Library needs to be knowledgeable about copyright and fair use, and our procedures must recognize the intent of the law. Your signature is required on the Reserve Request List as a method of ensuring that we have made a good faith effort to comply with the law.
What does "the nature of the copyrighted work" mean? It seems pretty vague.
The nature of the copyrighted work usually refers to the style and content of the work. In other words, is it fact or fiction; merely descriptive or creative; published or unpublished; etc. For example,. a newspaper article that is predominately factual (if copyrighted at all), would be viewed favorably under the "nature of the work" factor of the fair use test, while a newspaper op-ed column on the same topic that contains more of the author's creativity and analysis would be viewed much less favorably.
What about the effect on the market? The book I want copied is out of print, so it has no market. Correct?
Factor four, effect on the market, has been treated as one of the most important factors. It is arguable whether or not a photocopy of a portion of a work placed on reserve has an effect on the market. However, in the case of OP works, the courts have ruled that there can still be an adverse effect on the market. For example, a publisher may want to explore other distribution methods in the future.
Limits on Use
If there are limits on amount,tell me how much of a book I can put on reserve. I have two chapters of a text book I need my students to read--is that fair use?
There are no straightforward answers to this question. It's too bad, because things would be a lot easier if there were. If you examine the Code of Best Practices in Fair Use for Academic and Research Libraries you'll find some principles that might help.
Permission to use copyrighted materials
It seems difficult to be certain about anything. So are you telling me I have to get permission for everything I put on reserve?
No. The laws apply only to reproduced or copied material, so you can put books on reserve. Also, anything in the public domain can be copied without worry. Public domain refers to works that were once copyrighted but are no longer subject to copyright laws. Please see "When works pass into the Public Domain".
Besides non-reproduced material, and items that fall within public domain, all federal government publications are OK to copy. Also, if you're the author and you still own the copyright, no problem. You can do what you want. Did you sign away your ownership rights when you had the article published? If so, you are no longer the owner.
A colleague who authored this article sent me these reprints. If he gave them to me, it should be OK for me to make copies, right?
Only if he is the copyright holder. Today, most authors sign a form that transfers copyright ownership to the publisher.
I think I need permission. How do I get it?
Here are some sample letters:
In most cases, publishers will respond promptly. In some cases it may be difficult to determine who the copyright owner is. The Library or the Campus Copy Center may be able to give you some suggestions.
Multimedia and Web Use
If I used a journal article with permission in my course packet, then I can also put it on reserve, or on Blackboard, right?
Unfortunately, it's not quite that straightforward. Permissions for different kinds of distributions (such as, for sale to the class; a copy for a whole class to read; on the web for the class to read) are not the same. Essentially, you still need to analyze your materials to see whether you think they fall under the the Fair Use Guidelines. One great source of help for this is the Copyright Advisory pages at Columbia University.
What about videotapes being placed on reserve?
It depends. If the video tape is commercially produced, we can place it on reserve. Videotapes which have been recorded from television programs may be placed on reserve one time; a copy of the program purchased from the copyright holder (or authorization from the copyright holder) is required for the next term's use.
Can I place videotapes of student recitals, or papers written by students during previous terms on reserve?
If you have videotaped student work (dance or music recitals, as examples) other rules also apply. Student work from current or past terms is protected under federal law and university policy: FERPA (Family Educational Right to Privacy Act) and the UO Student Records policy.
Student identification numbers cannot be on the papers placed on reserve.
If you are placing on reserve originals or copies of student work, or video or audio cassettes of student performances:
which have personally identifying material on it (e.g.; names, grades, images) you must have on file written permission from that student. If the name, grade, or image appears on the work, you should document that the student has been made aware of this before they signed the permission statement.
which does not have personally identifying material on it, you are not required to have written permission from the student.
Removing names or other identifiers from student work does not relieve the instructor from copyright responsibility: you must obtain the student's permission.
For more information about FERPA you may contact the University Registrar. Also see: http://library.uoregon.edu/reserves/ferpa.html
The use of reserve materials for my class falls within the "nonprofit educational purposes" category. Does that mean everything I put on reserve can be considered fair use?
Not necessarily. None of the four factors set forth in the law is conclusive, and the weight to be given to each one will vary in each instance. However, in past court cases, the determination on factor one (e.g., commercial or non-profit educational use) has weighed very heavily. Factor three (amount and substantiality) has been held to be important when the "essence" of the work is used, even if it is a small amount. Recently, factor four has weighed the heaviest.
At least one well-known scholar on the educational uses of copyrighted material believes that library reserve use will generally fall within fair use when all four factors are considered. This is merely one opinion, albeit an informed one.
Please give me some advice.
Our advice is to act in good faith. Write for permission if you have doubts, particularly with regards to the amount and substantiality of the work.
I need to put a copy of half this book on reserve, and I need my class to have access to it right away. It may or may not be fair use, but I can't teach my class without it. Please help.
This is very complicated. Is there something I can read that will give me a better sense of copyright?
The Copyright Clearance office on campus also has some information that relates to course packet. The Center for Social Media is a good site to visit for details related to fair use and media. Reclaiming fair use: how to put balance back in copyright is an up-to-date look at copyright. There are also several listservs and new publications that deal more specifically with the use of electronic information.s.
Upon occasion, the Library joins with other institutions to host teleconferences or workshops related to copyright.