Lister Hill Letter
Newsletter of the Lister Hill Library of the Health Sciences at UAB

September/October 1998

Copyright and Fair Use

One of the most frequent reasons for visiting a library is to copy an article from a journal or a chapter from a reference book. With the explosion of Web-based information, we now also take for granted our ability to download or print out an item off the Internet. But "fair use" of copyrighted materials is often misunderstood and sometimes violated unknowingly by library users. Furthermore there have been many recent attempts in Congress to pass legislation effectively curtailing fair use rights, particularly as it involves online information. (The most recent legislation, implementing the World Intellectual Property Organization copyright treaties, includes provisions that many observers feel would make it virtually impossible to exercise such fair use activities as the printing out of an excerpt from an online source for personal use without the copyright owner's permission. For more information about copyright legislation, see the Association of Research Libraries' "Copyright and Intellectual Property" website at http://www.arl.org/info/frn/copy/copytoc.html. ) The purpose of this article is to detail what "fair use" rights currently include (and what they do not), and when it is advisable to seek permission prior to using a copyrighted source.

Before all else one must determine if the work in question is protected under the copyright laws. The only works that do not fall under the protection of the copyright laws are those in the "public domain" such as U.S. Government publications, works that lack originality, such as a telephone book, or older works for which the copyright has expired. (There has been recent legislation, such as H.R. 2589, aimed at extending the term of copyright protection.) In the case of software only true "freeware" can be safely copied without restrictions, although it is generally acceptable to make a backup of a legally owned copy of a software program for security. Do not assume that the absence of a copyright notice gives license to copy at will. The current copyright law gives automatic protection to the author or publisher of any original expression whether or not the work is registered with the Copyright Office or even has a copyright symbol affixed to it. When in doubt, assume that the work is copyrighted.

Another question to ask in determining whether the use would be considered "fair use" is, "What is the nature of the use?" If it is to be used for personal, educational or nonprofit use or for criticism and commentary, it can generally be used without permission providing other fair use factors are in line. This does not mean that "all's fair as long as it's for educational purposes." Other factors must be considered such as those detailed in the preceding paragraph and the following paragraphs. Furthermore, if the use is in any way connected with a commercial entity, it is best to seek permission before copying even if it is for research purposes. Consider for example the recent American Geophysical Union v. Texaco case. The courts ruled that a Texaco researcher was in violation of the copyright laws when he copied articles from scientific journals without paying royalty fees to the publisher. The courts rejected Texaco's argument that this was a "fair use" of the material, and one of the primary considerations in making this judgement was the for-profit mission of the company. (For more information see http://www.arl.org/info/frn/copy/texaco.html.)

Another key factor in determining if a use is fair or not is the amount of the work copied. The guidelines for research copying recommend copying no more than a small portion of any work, e.g., a chapter from a book or a single article from a journal issue. (If you request a copy of the majority of a journal issue in our collection from Lister Hill Library's Photocopy Services, your request will be denied for this very reason.) Again, other fair use factors come into play, such as whether the work will be used in a profit-making enterprise.

Finally, one must ask the following: "What would be the effect of the use on the potential market for the work in question?" In answering this question, take care to consider not only your own single use of the work, but the cumulative effect of hundreds of other users making similar uses of the work. This is often difficult to fathom, particularly since the other factors still weigh heavily for or against fair use. Again, when in doubt, ask permission.

Unfortunately much is left to be settled particularly where fair use of Web-based publications is concerned. Still, common sense and the "Four Fair Use Factors" test as detailed in the previous paragraphs should safely guide you through most potential copyright danger zones. And it is always best to seek prior permission if you have any doubt about the legitimacy of your use of a copyrighted work. Do not presume that if you are connected with a university or similar large-scale enterprise that the copyright owners will ignore you and sue the larger entity in any infringement case. Copyright owners have sued individuals in the recent past and the financial penalties can be harsh.

Finally, pay attention to the copyright legislation battles in Congress - this concerns you whether you are a reader, student, teacher, researcher or all of the above!