Re: fair use of psychological scales

["Oppenheimer, Martin A." <Martin.Oppenheimer@xxxxxxxxx>]

We had a situation where we purchased a license to a proprietary set of
guidelines for laser safety, and one of the safety personnel unwittingly
posted them on the university website in a manner that made them
accessible to anyone who wanted them.  It was clear when we looked at the
situation with outside counsel that this action violated the terms of  our
license and potentially disrupted the company's ability to sell the
guidelines to others (who could now download the guidelines from the web
for free.)  We negotiated a monetary settlement with the copyright owner.

Marty

Martin Oppenheimer
Senior Counsel for Business Affairs
Tufts University
(617) 627-3337
martin.oppenheimer@xxxxxxxxx







On 9/2/11 9:06 AM, "Charles P. Wiggins" <cpwiggins@xxxxxxxxxxxxxx> wrote:

>"Yes, but do you think any court now would not likely take the same
>approach
>toward consumables?"
>
>I would think so. I think consumables like forms and worksheets would
>easily
>fail the fourth Fair Use test in such a spectacular manner that it would
>be a
>forgone conclusion that it is an infringement, especially when it is
>clearly
>forbidden by the "Guidelines" agreement Kevin Smith cited.  The only
>exception
>I can clearly see would be if the consumables are no longer available for
>purchase.
>
>Mr. Smith does raise one other important point.  If the nature of the
>content
>does not include any unique intellectual property, then only the
>expression of
>the consumable would be protected and there would be nothing to prevent an
>institution from producing a similar form or worksheet in a different
>expression.  Good examples of that would be a job application or a math
>worksheet.  Generally, these kinds of forms contain information that
>would be
>considered factual data and common knowledge and therefore not subject to
>copyright protection.
>
>My 2 cents,
>Charles
>
>
>Charles P. Wiggins
>Director of Library Services
>Isothermal Community College
>P.O. Box 804
>Spindale, NC 28160
>828-286-3636 ext. 216
>
>cpwiggins@xxxxxxxxxxxxxx
>
>
>
>E-mail correspondence to and from this sender may be subject to the North
>Carolina Public Records law and may be disclosed to third parties.
>
>>>> Sandy Thatcher <sandy.thatcher@xxxxxxxxxxxxxxxxxxxx> 9/1/2011 2:53 PM
>>>>>>>
>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]
>
>
>--
>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
>
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>
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