RE: fair use of psychological scales

As a former university press director, I can attest that Rick is exactly right--and different publishers will approach the question differently, depending on how risk-averse they are and (for university presses) what relationship they have to their on-campus legal counsel.

Sandy Thatcher

At 5:40 PM +0000 9/1/11, Davis, Rick K. wrote:

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]

--
Sanford G. Thatcher
8201 Edgewater Drive
Frisco, TX  75034-5514
e-mail: sandy.thatcher@xxxxxxxxxxxxxxxxxxxx
Phone: (214) 705-1939
Facebook: http://www.facebook.com/sanford.thatcher

"If a book is worth reading, it is worth buying."-John Ruskin (1865)

"The reason why so few good books are written is that so few people who can write know anything."-Walter Bagehot (1853)

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