Content placed on Reserves Direct and Blackboard must comply with U.S. Copyright law. No one should post content consisting of copyrighted material or portions of copyrighted material without first:
- determining that the content falls within the public domain,
- obtaining permission from the copyright owner, or
- determining, after a reasonable analysis, that the content is a fair use for which permission is not required. For help with the fair use analysis, please contact the Reserves Team.
If you are a Blackboard user interested in posting content (journal articles, book chapters, etc.) for which you do not own the copyright, please work through the Reserves Direct system, and our library staff will assist you with permissions, fair use, public domain, and other issues. You can then create a link to the content on Reserves Direct from within your Blackboard course. Contact the Reserves Team by sending an e-mail to reserves@emory.edu.
Please be aware that the Libraries review all materials uploaded or faxed to Reserves Direct in order to determine if those materials fall within Fair Use and our license agreements.
What is Fair Use? :: Applying Fair Use :: The Public Domain :: Permissions :: Material from Databases and eJournals
Using Web Resources :: Faculty Created Material :: FAQ :: Contact Information
What is Fair Use?
Fair use is an exemption within copyright law that allows for the use of copyrighted materials without obtaining permission, provided the use is fair. A determination of fair use rests upon a four factor analysis, and the goal of the analysis is to balance the rights of the copyright owner with the rights of the public to use portions of copyrighted materials for education, commentary or criticism. The fair use exemption is technologically neutral, so the same four factor analysis should be applied regardless of the medium.
While the only way to definitively determine whether a use is fair is to have it resolved in federal court, it is important to understand fair use and the four factor analysis used to determine whether a use is fair. If someone claims copyright infringement, the court can reduce the amount of money damages if the alleged infringer can show an understanding of the fair use analysis and that they made a good faith determination that the use was fair.
Section 107 of Title 17 of the United States Code states:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any
particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Applying Fair Use for Electronic Reserves:
Factor 1: Purpose
The purpose of the use refers to whether the use is for an educational purpose, such as teaching or research, or whether the purpose is for a commercial activity. Another consideration is whether the use is transformative, whether the use changes the original work to serve a new purpose. Educational uses and transformative uses weigh more favorably toward fair use.
When applying fair use for electronic reserves, the purpose of the use should be educational. As such, the posting of e-reserve material should be at the request of the instructor, and the material should either be required or optional reading for the class.
Factor 2: Nature
The nature of the copyrighted work refers to whether a work is artistic and creative or whether it is factual in nature. A factual work weighs more favorably toward fair use than an artistic and creative work.
Additionally, this factor takes into consideration whether the work in question has been published or is unpublished. An unpublished work weighs less favorably toward fair use, as one of the exclusive rights granted to copyright holders is the right to determine when their work is first published.
Both creative and factual materials are included in e-reserves, accordingly faculty and library staff should take the nature of the work into consideration when applying fair use to e-reserves.
Factor 3: Amount
When determining the amount of the use one should perform both a quantitative and a qualitative analysis. The smaller the portion used, the more likely the use would be considered a fair use. However, even a very small portion of a work may not be considered a fair use if it were the “heart of the work,” or the most memorable aspect of the work.
Another important consideration in the third factor is whether the amount of the use is appropriate for a favored educational purpose. For example, in a nonprofit educational setting, the copying of an entire journal article for students in a class would likely be a fair use, but the same copying by a commercial copy shop would require permission.
With regard to e-reserves, only those portions of the work relevant to the educational objectives of the course should be posted to e-reserves. Such material should generally be limited to briefs excerpts of works. However, faculty and library staff may also consider whether the amount is appropriate for educational objective of the course.
Factor 4: Effect
The fourth factor considers whether, if the use of a work were widespread, it would deprive the copyright owner of income or negatively impact the market or potential market for the original work. Consequently, the more restricted the use, the less of an impact there will likely be on the market or potential market for the original work.
The fourth factor is also linked to the purpose of the use because a negative impact on the market is often presumed if a use is for a commercial purpose. However, if the use is for an educational purpose or is transformative, then a negative impact on the market will be more difficult to prove. The use of some works, like workbooks or educational videos, is rarely found to be fair because such works are produced specifically for the educational market.
The Emory Libraries limit access to e-reserves to only the students, faculty and staff of Emory University. Only those students registered for a specific course will have access to the e-reserve materials for that course. Additionally, the Libraries terminate student access at the end of a given semester in order to help ensure limited impact on the market. The Libraries do not supply copies of materials outside of the context of a course that is active for the current semester, nor does library staff provide copies of files directly to students or faculty on disk, by electronic transfer, or by any other medium. It is the responsibility of every user of the e-reserves system to comply with the spirit of the fair use exception by only using documents or materials posted in the system for personal, academic use.
For help in determining whether your use of a work is fair use, please contact the Reserves Team.
The Public Domain:
The public domain refers to material not protected by copyright. Anyone can use material in the public domain without permission. Some material, such as that created by an employee of the U.S. federal government, in their official capacity, automatically enters the public domain upon creation. However, most material enters the public domain due to the expiration of the copyright term. Generally, any material published in the United States prior to 1923 or published outiside the United States prior to 1909 is in the public domain and can be used without permission.
Permissions:
If the copyrighted material you would like to use in not within the public domain and your use of the work is not fair use, you need to obtain permission from the copyright owner. In support of classroom instruction, Provost Lewis has generously created a special fund for the Libraries to pay for permissions. This fund is separate from the budget for new library materials. If a reserve assignment seems to exceed the threshold of fair use, the Libraries will seek and pay applicable permissions fees on those materials as a service for the faculty. Please contact the Heather Williams for more information.
Licensed Database and eJournal Content:
The Emory Libraries provide access to a number of databases and electronic journals by subscription agreement with vendors. Examples of major vendors of electronic resources include EBSCO, JSTOR, Project Muse, and Lexis Nexis. The Libraries maintain a full list of all databases and eJournals with current subscription agreements. In many cases the license agreements with the vendors or publishers of these materials specifically address whether or not content may be downloaded and re-posted to an electronic reserves system. Since the answer to this question is uneven and there are so many licenses to consider, Reserves policy is TO LINK TO ANY DATABASE OR eJOURNAL CONTENT, rather than downloading the document and uploading it into ReservesDirect.
Library staff reviews uploaded and faxed content, and any database or eJounal content will be changed to links or removed if they are in breach of any library contract. IT IS ALWAYS SAFEST TO LINK. If you have any questions about how best to link to database and eJournal content, please contact the Reserves Team.
Using Web Resources in Electronic Reserves:
When including web resources in e-reserve, simply link to the webpage from Reserves Direct. Linking is preferable to scanning or making a digital copy.
One should assume that all material published on the web is copyrighted. Copyright law no longer requires a copyright owner to place a copyright notice or symbol on copyrighted material. Therefore, unless the webpage specifically states that anyone can use the work for any purpose, one should assume that “all rights are reserved.”
However, some copyright owners prefer to share their work with the public, and one way to do this is through a Creative Commons License. Creative Commons is a way for copyright owners to allow others to use their work, under certain conditions. Copyright owners can choose from several licensing options and allow the public to use their work with certain restrictions like non-commercial use or with proper attribution.
Including Faculty Created Content in Electronic Reserves:
Faculty created material can be included in e-reserves. Such material includes exams, quizzes, course notes, course syllabi, and journal articles for which the faculty member retained copyright.
Many publishers use traditional publication agreements which require that all rights, including copyright, transfer to the journal publisher. Consequently, if you have transferred your copyright to the journal and later want to post your article in e-reserves, you may have to ask for permission from the journal publisher.
One way to avoid this issue in the future is to carefully read all your publication agreements and negotiate with the publisher. This can be done by adding the SPARC Author Addendum to your publication agreement. The addendum modifies the publication agreement to allow the author to retain some rights, including the ability to post the article to e-reserve.
FAQ:
Do I really have to concern myself with copyright law since all educational use is fair use?
An educational use is NOT automatically a fair use. The four factor fair use analysis must be applied to each use of a work to determine whether the use is fair or not.
If the book I want to use is out of print, then there is no effect on the market, right?
Even if a work is out of print there can still be an adverse effect on the potential market, as a publisher may wish to explore other distribution options for the work in the future.
For more information, please contact:
Heather Williams, Copyright Specialist and Rights Management Coordinator
Return to Course Reserves
Home Page
