RE: [digital-copyright] question - Using a portion of a digital document for an online course

[Charles Wiggins <cpwiggins@xxxxxxxxxxxxxx>]

Rebecca,



I feel a lot shakier about my response here than on other issues in the past,
but for my part, as I look at Fair Use in relation to the facts at hand, and
without knowing how much of the work is fact and how much in creative or
interpretive, I would think that your faculty member would be on fairly shaky
ground to use such large, continuous sections of the work, especially since
the permission has been revoked.



If one looks at the Four Factors <
http://www.ala.org/advocacy/copyright/fairuse/fairuseandelectronicreserves#4f
actors >, the only one I would feel was solid is the First Factor, the
Educational Use.



If the work is primarily a restatement of the law, then I would think the
Second Factor, The Nature of the Work, is also in the instructor's favor. But
if it includes interpretation and analysis, then that is less in favor of Fair
Use.



As to The Amount Used, the Third Factor, the 42 pages is over one-eighth of
the whole and the concepts included may be at the heart of the work.



And the Potential Effect on the Market? This is where I think the instructor
may be weakest.  She's already admitted that the work is important enough to
the class that she will ask them to purchase it in the future. (On the other
hand, if the students are exposed to the work, they may become lifelong
customers if they recognize the value to the work to their jobs, so the
publisher could be missing a great marketing opportunity.)



Personally, I would ask myself how litigious a publisher that hires lawyers to
produce content is likely to be.  If it was one of our instructors I would
encourage them to obtain a purchased copy and place a hardcopy on Reserve in
the Library if all of the students are local. If not, I would put the
purchased copy on Electronic Reserve if you have that capability. They might
disagree that Reserves falls within their single user license limitation to
"one department," but if the Library purchased it and they approved the
transaction, I would think that would at least grant an implied license, as
they would know that libraries loan materials to their patrons.



My 2 cents,

Charles



-----Original Message-----
From: Funke, Rebecca S. [mailto:rsfunke@xxxxxxxxx]
Sent: Tuesday, January 22, 2013 5:07 PM
To: digital-copyright@xxxxxxxxxxxxxx
Subject: [digital-copyright] question - Using a portion of a digital document
for an online course



Good afternoon,



I have an instructor who has an interesting question regarding the use a
manual that is in pdf format.  The instructor wants to use a portion of the
manual for her online class.  Here is what I know:





1.       Instructor received a free copy of the manual in electronic

formation, in Jan. 2011, from the publisher/organization.



2.       Instructor believes she did not agree to any license agreement when

she received the file.



3.       The manual is only available in pdf format; cost ranges from $50 to

$250: http://www.iahima.org/Legalmanual/instructions.htm



4.       The manual is clearly identified on the publisher site as a
reference

tool, not as a resource specially created and marketed for online classes.



5.       The instructor wants to use pgs 1-28 and 32-45 (42 pages of 292
total

pages in the manual).





Is it possible for the instructor to use the 42 pages under Fair Use?  Of
course, using just a section of the manual would mean the pdf would need to be
altered or printed and then rescanned as a smaller document.



I have included below, three emails from the publisher to the instructor.  The
publisher initially gave the ok (just weeks ago) for the instructor to use
portions of the document in her online course.  The last email indicates that
such permission is now being withdrawn and guides the instructor to Fair Use.



Thoughts?



Rebecca Funke

Director of Library Resources

Des Moines Area Community College

2006 S. Ankeny Blvd

Ankeny, IA 50023

Ph:  515.964.6328

Email:
rsfunke@xxxxxxxxx<mailto:rsfunke@xxxxxxxxx<mailto:rsfunke@xxxxxxxxx%3cmailto:
rsfunke@xxxxxxxxx>>

"What a school thinks about its library is a measure of what it thinks about
education."

~ Harold Howe, former U.S. Commissioner of Education







From:

Sent: Tuesday, January 22, 2013 2:24 PM

To: Funke, Rebecca S.

Subject: RE: question on digital resource



Rebecca,

Here is a copy of the file.  And here are copies of the e-mail.  I did find
the initial emails when they sent it to me and 2 years ago they did tell me
students would need to purchase the guide separately.  (see yellow)  So
probably based on this, I shouldn't post a copy in the library.  Let me know
what you think.  Next year I will plan on students purchasing it.  I just
changed this class to online and I forgot about needing this resource for an

assignment that we had done in class last year.   Since we only used sections

of it, that's why I decided to ask for permission.   I appreciate your help.



This is the initial e-mails I received with the file:





1.        :  Thank you.  Following are your download instructions for the
Iowa

Guide to Medical Record Laws, 7th Editiion:  Go to



And then they sent me a user name and password to use to access it.











2.        This is the first e-mail they sent to me telling me I get a copy
for

no charge to use as a resource.  And then I do see they said students would
have to purchase the Guide separately.



From:

Sent: Wednesday, March 23, 2011 10:34 AM

To:

Subject: RE: Legal Guide



[Name]:  Your email was forwarded to me.  I am the Legislative Liaison for

IaHIMA.   After discussion with our Board, we will provide a copy at no
charge

to you for use in the classroom only.  Your students would have to purchase
the Guide separately.  I will notify our webmaster that we will be providing
you with a copy.  If you have any questions, please do not hesitate to contact
me.



This is the e-mail I got giving me permission to post portions of the document
(Jan 2, 2013):

Hi [Name]:



I apologize for the delay in hearing back from the board. I just received your
message from our website coordinator and wanted to follow up with you.



We as a board are in agreement with you citing portions of the legal manual as
needed for your online course. Please only make reference to this and do not
place the entire manual on line. Please note the legal guide is available for
purchase as well.



Please do not hesitate if you have any further questions.



Thank you!





This is the e-mail I just got from them asking me to remove the sections I
posted (Jan 18, 2013):

Dear [Name]:



I wanted to contact you on behalf of IaHIMA following our Board meeting
today.

The board discussed your request regarding the posting of excerpts from the
Iowa Guide to Medical Record Law for your online course. The Board had
multiple questions and concerns regarding this being available at liberty to
post online. Currently the manual is available for student purchase at the low
cost of $50. As this is an online course I presume, required for various
clinical/nonclinical degrees, it is the feeling of the Board that the students
are encouraged to purchase this manual if needed for completion of this course
vs deciding what information is warranted to be posted.



I would refer you to the "Fair Use Copyright Law" at
http://www.copyright.gov/fls/fl102.html. In order to respect the copyright
laws as well as the extensive work our legal consultant has performed in
preparation and revision of this manual, it would be inappropriate to site
specific excerpts from this manual. We currently incur an extensive expense
for legal counsel to update this manual. Therefore, I would retract my
original email indicating approval of such posting.



Please do not hesitate to contact me with any questions or concerns.






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