RE: fair use of psychological scales

[Sandy Thatcher <sandy.thatcher@xxxxxxxxxxxxxxxxxxxx>]

Yes, but do you think any court now would not likely take the same 
approach toward consumables?

Sandy Thatcher


At 12:14 PM -0400 9/1/11, Peter B. Hirtle wrote:
> Kevin is right: the prohibition on the reproduction of consumables is in the
> "Guidelines for Classroom Copying in Not-For-Profit Educational Institutions,"
> which some educational organizations rejected when they were proposed and
> which have not been upheld by the courts.
>
> Peter Hirtle
>
> -----Original Message-----
> From: Kevin Smith [mailto:kevin.l.smith@xxxxxxxx]
> Sent: Wednesday, August 31, 2011 1:25 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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