Re: Copyright question

[Bryan Carson <bryan.m.carson@xxxxxxxxx>]

Jennifer,

In order to answer this question, you should take stock of the potential
exceptions to copyright law. There are only three possible exceptions, i.e.,
the library exception, the education exception, and fair use. Otherwise,
copyright permission is needed.

The library exception in 17 U.S. Code section 108 doesn't apply. That is
only for a library to make copies for its clients, for preservation, or for
interlibrary loan.

The education exception is found in 17 U.S. Code section 110. Section 110(1)
applies only to face-to-face education. Section 110(2) (known as the TEACH
Act) only applies to distance education; it requires (among other things)
students enrolled in a scheduled class at a non-profit accredited
institution. So the education exception to copyright does not apply.

Fair Use is found in 17 U.S. Code section 107, and requires an individual
case-by-case assessment of four factors:

   - 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.

In looking at this test, I think that courts would come down on the side of
finding the clearinghouse to be infringing copyright. The four factors weigh
against fair use. I think that the clearinghouse would be the target of a
lawsuit, and would not be successful in defending itself. So my
recommendation is to only post items that the clearninghouse has permission
for.

Bryan M. Carson

-- 
Bryan M. Carson, J.D., M.I.L.S., Ed.D.
Special Assistant to the Dean for Grants & Projects/
Coordinator of Reference & Instructional Services
Western Kentucky University Libraries
Author, "The Law of Libraries and Archives" (Scarecrow Press)

1906 College Heights Blvd. #11067
Bowling Green, Kentucky  42101-1067
Phone: 270-745-5007; Fax: 270-745-2275
bryan.carson@xxxxxxx | bryan.m.carson@xxxxxxxxx

All original content copyright Bryan M. Carson


On Wed, Mar 30, 2011 at 2:27 PM, Barrera, Ms. Jennifer <BARRERA@xxxxxxxxxxxx
> wrote:

> Does an educational clearinghouse, http://www.acefacilities.org/ have any
> fair
> use or other avenues when wanting to post materials online, open to the
> public
> for an indefinite amount of time? My thinking is that they need to obtain
> copyright permission to post on the open web.
> What if it is research-based materials?
>
> Advice??
>
> Jennifer Barrera
> Access Services Librarian
> Dick Smith Library
> Tarleton State University
> Stephenville, TX 76402
> (254)968-9248