RE: fair use of psychological scales

[Kevin Smith <kevin.l.smith@xxxxxxxx>]

I don't think there is any rule in the Title 17 about "consumables" being
treated differently.  Certainly, one could still do a fair use analysis on
this material.  The fact that it is a consumable (if it is) might have an
impact on the fourth factor, but the law does not specifically foreclose the
possibility of fair use.

Before looking at fair use, however, two other questions should be considered.
First, was the instrument obtained subject to a licensing agreement?  If it
was, the terms of the agreement, not the copyright law, will control.  Second,
is the instrument likely to be subject to copyright at all?  Someone already
mentioned Baker v. Sheldon, and the point is well-taken.  If the scale lacks
originality, it may not be necessary to get to the fair use analysis.

Kevin L. Smith, M.L.S., J.D.
Director of Scholarly Communications
Duke University, Perkins Library
P.O. Box 90193
Durham, NC 27708
919-668-4451
kevin.l.smith@xxxxxxxx


-----Original Message-----
From: Cary Jardine [mailto:cjardine@xxxxxxxxxxx]
Sent: Wednesday, August 31, 2011 1:10 PM
To: digital-copyright@xxxxxxxxxxxxxx
Subject: Fwd: fair use of psychological scales

Sorry, I think this didn't go to the list the first time!

---------- Forwarded message ----------
From: Cary Jardine <cjardine@xxxxxxxxxxx>
Date: Wed, Aug 31, 2011 at 1:08 PM
Subject: Re: fair use of psychological scales
To: Jeffrey Galin <JGALIN@xxxxxxx>


That would be my understanding as well -- that 'consumables' cannot be
reproduced.  And assessments such as these, as far as I know, are not allowed
to be used or even made available to students for study without payment, and
there are usually restrictions about who may purchase them (licensed
professionals, etc).  Also, I'm not aware of any specific exemptions for
"non-funded research."

Cary Jardine, MLS
Antioch University New England Library
Keene, NH 03431
603.283.2405
cjardine@xxxxxxxxxxx

On Wed, Aug 31, 2011 at 11:31 AM, Jeffrey Galin <JGALIN@xxxxxxx> wrote:

> Reilly,
> It is my understanding that scales and scoring sheets are copyrighted
> consumables which means you must pay for them.  While there are common
> practices in many fields to reproduce forms on copy machines, these
> reproductions without permissions or licenses are violations of copyright.
> Cheers,
> jrg
>
> -----Original Message-----
> From: Reilly, Michele [mailto:mreilly@xxxxxx]
> Sent: Wednesday, August 31, 2011 11:11 AM
> To: 'digital-copyright@xxxxxxxxxxxxxx'
> Subject: fair use of psychological scales
>
> Hi All,
>
> I have a researcher with a question about Fair Use.
>
> "I am planning a study with a friend and it was my understanding that
> even scales that are copyright are fair use when using them for
> non-funded research.  My friend has previously payed in order to use
> the scales.  I was wondering which of us is correct.  To put the study
> we are planning into more perspective, we want to use the Beck
> Depression Inventory and the Beck Anxiety Inventory in order to
> validate a measure of nightmares we are attempting to validate.  Any
> information you could provide about this topic would be much
> appreciated."
>
> Any help would be greatly appreciated.
>
> Thanks,
> Michele
>
> Michele Reilly
> Head of Digital Services
> University of Houston Libraries
> 114 University Libraries
> Houston, TX 77204-2000
> Phone: 713-743-8995
> mreilly@xxxxxx
> [cid:image001.png@xxxxxxxxxxxxxxxxx]
>
> [***** removed an attachment of type image/png which had a name of
> image001.png]