How to: Use Media in the Classroom: Copyright and Fair Use: Reserves (eRes) - scanning of print materials

With few exceptions, every literary, dramatic, visual, or musical work established in a fixed format is copyrighted.  The copyright holders of these works are the only ones who may make and distribute copies of the works, whether for financial gain or otherwise.  However, U.S. copyright law does provide certain exceptions, particularly for nonprofit educational institutions.  The most notable among these is the concept of fair use.  U.S. copyright law states that, "the fair use of a copyrighted work, including such use by reproduction in copies ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."  Therefore faculty are allowed to use limited portions of copyrighted works in the course of their teaching without that use infringing on others' copyrights.  However, the law lists four factors that must be taken into account when determining whether a usage could be considered fair use.  The factors are:

"(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes"

If the use is intended to make money it probably is not fair use.  If, on the other hand, the use confers no financial gain and is for scholarship or education it is more likely to be viewed as fair use.

"(2) the nature of the copyrighted work"

Historically the law has tended to view uses of scholarly, factual works as fair use more frequently than it has creative works.

"(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole"

In general this tends to mean that the more of a given work you use the less likely it is to be a case of fair use.  However, there are exceptions.  Using the "heart" of a work is typically not considered to be fair use no matter how small a portion it is.  As with much of copyright law, what constitutes the "heart" of a work is somewhat open to interpretation and varies from work to work, but it is essentially the core or essence of the work.

"(4) the effect of the use upon the potential market for or value of the copyright work"

What this means is that a use of a work which could reasonably be determined to have a negative effect on the future demand for or sales of that work would likely not be considered fair use, while a use of the work which could reasonably be determined to have little to no effect on the future demand for or sales of that work would likely be considered fair use.

When attempting to determine if a particular use of a work is fair use you should asses the use according to each of the four factors.  If all four indicate that it is likely fair use then it probably is.  If one or more seem to indicate it is not fair use, then it likely is not.

• Both the physical and the electronic reserves systems exist to provide students access to required course readings.  Many of the copyright law exceptions granted to educational institutions are dependent upon the works displayed being fully integrated into classroom teaching.  Therefore, the physical and electronic reserves services are not to be used to display optional or suplimentary readings. 
• The rising cost of textbooks is understandably a concern for both faculty and students.  It is a concern for the Library, too, and the Library is dedicated to helping students save money by providing them with as many high-quality resources as it can at no additional cost.  However, the electronic reserves system is not meant to be a substitute for students purchasing textbooks.  The U.S. copyright law's fourth factor for assessing fair use makes it clear that a usage is likely not fair use if that use could reasonably be seen as negatively effecting sales or demands of that work.  Therefore if the display of a portion of a particular work on an electronic reserves course page could reasonably be seen as substituting for the purchase of that work in its entirety by the students in that course, it is likely not fair use.  In such a case the work could be placed on physical reserves for students to access, but they should likely still purchase the book for themselves.
• While the Library staff does not monitor the Moodle course management system, all copyright law discussed in this guide applies to documents uploaded to Moodle as well.  Faculty assume copyright compliance responsibilities for any documents posted to Moodle course pages, but Library staff would be happy to offer advice on not violating copyright law.
• Despite the emphasis in this guide on not violating copyright law, faculty should not be afraid to exercise their legal right to utilize portions of copyrighted works for educational purposes.  Even if the Library determines a particular usage will not be allowed due to a possible copyright violation, Library staff are happy to assist faculty in finding a way to transmit all necessary information to students in a manner that still complies with copyright law.

Holy Cross's electronic reserves system offers the option of linking directly to content on the web via its "Web Link" field.  Many electronic journals the Library has access to offer perma-links/stable URLs, which are direct links to articles that will not change regardless of if the publisher moves content around on their servers.  As the Library is already paying for students to have access to these journals, directly linking to articles is absolutely allowable under copyright law.  Because of this, the Library policy is to always directly link to electronic journal articles when they are available rather than scanning and uploading a printed version of that same work.  Many e-journal publishers have stipulations in their contracts with Holy Cross that restrict or outright forbid the distributation or display of printed copies of the articles they publish, even if those copies are scanned and displayed electronically.  As such, the Library does not post PDFs of journal articles when those same articles could be linked to electronically.

Similarly, web pages freely viewable on the internet are nonetheless still typically copyrighted.  Using the web link option to link directly to these pages is allowable, but the same rules would apply to posting scanned PDFs of printed web pages as would apply to posting PDFs of any other work.  The only issue to be aware of when linking to outside web pages is that URLs might change at a later date, resulting in the posted web links being dead.