Subject: RE: fair use of psychological scales From: "Davis, Rick K." <rkDavis@xxxxxxxxxx> Date: Thu, 1 Sep 2011 17:40:28 +0000 |
Another thought: If this study will eventually be published the authors will likely have to deal with the publisher's interpretation of fair use as well. So even if the authors believe they have a reasonable fair use claim to make, if the publisher disagrees and isn't willing to budge, then the authors will have to get clearance anyway. Rick -----Original Message----- From: Humphrey, Brenadine Ms [mailto:humphreyb@xxxxxxxxxxxxxxxxxx] Sent: Thursday, September 01, 2011 11:27 AM To: Kevin Smith; Cary Jardine; digital-copyright@xxxxxxxxxxxxxx Subject: RE: fair use of psychological scales I think the reason people think there something special about consumables is their treatment in the 1976 committee "Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions" with respect to books and periodicals. The text of this agreement is reprinted in Copyright Office Circular 21 and includes: III. Prohibitions as to I and II Above Notwithstanding any of the above, the following shall be prohibited: ... b There shall be no copying of or from works intended to be "consumable" in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material. So, while this is not law, it is in the Circular from the Copyright Office so it could "seem like" it's the 'law'. I also checked, even the record forms themselves are registered with the Copyright Office (thank you on-line search) so while you or I might want to argue they do not contain enough originality, the Copyright Office and at least one of its registrars believed it did. So, fair use could still be an argument if you evaluate the 4 factors and make a thoughtful determination. As an aside, the BAI & BDI records form are $52.00 for a pack of 25 (each). So depending on how many you need...this could get expensive really quickly. Also, what if you used 1 record form for one person, but several different times over several different periods? Or what if you just wrote patient name, 1-21 and scored your answers on another sheet of paper? I don't know - this is a weird one. And if you buy the software to administer it, you pay an annual license fee for the software and then $22.00 for every 25 records. Does anyone at the institution have the software; does the department subscribe to the networked version? Does the university or department have any funds for undergrad/grad research that could be used for this? What a tough one. -Brenadine Brenadine Carol Humphrey Copyright Specialist George C. Marshall Center College of International Security Studies DSN 314.440.2699 COM +49 (0)8821 750.2699 humphreyb@xxxxxxxxxxxxxxxxxx -----Original Message----- From: Kevin Smith [mailto:kevin.l.smith@xxxxxxxx] Sent: Wednesday, August 31, 2011 7:25 PM To: Cary Jardine; digital-copyright@xxxxxxxxxxxxxx Subject: RE: fair use of psychological scales 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]
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