Re: fair use of psychological scales

[John Mitchell <john@xxxxxxxxxxxxxxxxxx>]

With respect to Brenadine's "what if you just wrote patient name, 1-21 and
scored your answers on another sheet of paper?", I had asked myself the same
question, and concluded that there can be no copyright problem. The copyright
protects only the particular expression, and certainly does not extend to the
answers third parties give to copyrighted questions.

Since the copyright does not cover private performances of the work, there
would certainly be no problem using the same form repeatedly (serially) with
infinite test-takers. (Funny thing is, I had to take a remedial course for
having got caught going 65 mph in a 35 mph zone, and being unable to persuade
the judge otherwise, and the test I took involved one printed set of questions
that, from the look of it, had been used by myriad test-takers, and a separate
sheet of paper on which to merely write A, B, C or D beside each number
(corresponding to the questions). Whether that traffic school test was
copyrighted, I do not know, but the method seemed to me perfectly
non-infringing if it had been.

John

On Sep 1, 2011, at 11:26 AM, Humphrey, Brenadine Ms wrote:

> 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]
>>
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