The most recent Trunk release saw changes to the Upload Files page, with additional options to indicate the copyright status of material being uploaded. Now, if you choose “Fair Use” or “Creative Commons,” a text box entitled “Copyright Information” appears asking for more details. Additional options include, “I hold copyright,” “Permission from copyright holder,” “Public domain,” and “Other.”
How do you know what copyright status to choose? And what should you put in that box?
Next to the drop down box for copyright status is a link that reads “more info.” That link (http://sites.tufts.edu/scholarlycommunication/?page_id=1350) brings you to a page that reviews the choices in more detail.
Case Study: Uploading a Book Chapter
Imagine that you have scanned a chapter from an edited book that you’d like to upload to Trunk so that students in your class can read it in advance of a class discussion on the argument presented in the chapter. But you are not sure if this violates copyright. What should you do? Head over to the Scholarly Communication @ Tufts website (http://sites.tufts.edu/scholarlycommunication/?page_id=20) to conduct a four factor fair use assessment to see if you can claim Fair Use when uploading the chapter.
The first factor asks you to consider the “purpose and character of the use.” In this example, you want to provide a copy of a chapter in a book for your students to read outside of class, so that you can come to class and discuss the argument being made by the author. Because you are not simply reporting on the argument of author, but instead critiquing the argument, you are transforming the original. Also, given that your proposed use is non-profit and educational, this factor is likely to sway towards fair.
The second factor looks at the “nature of the copyrighted work.” This means if the original work is very creative it should have more protections from re-use as compared to a work that is more factual in nature. Most academic works are considered to fall more on the factual than creative side of the ledger, thus, here too, this factor is likely to sway towards fair.
How much of the original do you need is the third factor. Wherever possible, use just what you need to get your point across. Although many people remember certain percentages from guidelines, it’s important to know those are only guidelines, and not actually part of the law itself. Here, one chapter seems quite reasonable, again pointing towards fair. What if you wanted to scan the whole book, but were only going to talk about one chapter? Probably not fair.
The last factor asks you to consider how the market for the original item may be impacted by your proposed re-use. The Copyright Clearance Center does provide licensing options for some articles, but does not have a robust market for chapters. However, the courts have shown that the mere existence of a market does not trump consideration of the other three factors. In our example, there is no way to license access to the chapter in question, thus, it is likely fair on this factor as well.
Given the above analysis of all four factors, you could make a strong fair use case for uploading this chapter to your class site in Trunk. And in the text box that pops up when you chose “Fair Use,” you could include some brief notes summarizing the four factor test:
- Non profit, educational use and transformative as it’s for comment and critique
- Scholarly works are not considered very creative
- Amount is appropriate to the use and recognizably small
- No market to license books by the chapter exists, the rights holder is not harmed
Where you do have electronic access through a library subscription or if it’s available on the open web, direct linking is preferable, but if you had to upload the chapter, it would probably be covered under fair use.
Copyright is certainly a gray area, however, help is available to assist you reason through a fair use assessment. Get in touch with your librarians or with a member of the Scholarly Communication Team with questions.
The Tufts Scholarly Communication Team works with faculty, students, and staff on issues related to copyright, author’s rights, and open access. For more information about those topics, or the team visit the Scholarly Communication @ Tufts website (http://sites.tufts.edu/scholarlycommunication/).
Martha Kelehan, Social Sciences Bibliographer, Tisch Library
Tufts Scholarly Communication Team, http://sites.tufts.edu/scholarlycommunication/