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⇒ Getting started when you're using work created by other people
If you're using materials created by other people in your online scholarship (e.g. including paragraphs of a novel, using someone else's photographs or drawings), you need to consider whether you need permission from the copyright owner of those materials to include them in your own work.
Step 1 of the Workflow gets you started with considering whether you need permission. If you can answer "YES" to any Step 1 question, you do not need to seek permission for including the third party's work in your online scholarship, and can skip to Step 3.
⇒ Has a License Already Been Granted?
The first question to ask is: Has copyright holder already granted a license for you to include their work. Sometimes authors have already provided permission through grants such as Creative Commons licenses. The license, itself, will identify the terms of what uses can be made without needing to get the author's permission first.
If a copyright holder has not already applied a Creative Commons license, he or she may be willing (often for a fee) to grant publication permission under specific terms and conditions. Step 2 addresses how to ask for that permission.
⇒ Is the Work in the Public Domain?
Public domain works are open for use with no permission needed. Just because material is online, however, does not mean it's in the "public domain." Public domain instead refers to works for which copyright protections have expired, or works that were ineligible for protection.
Published 1978-present: Work likely not yet in the public domain. (Remember, copyright is usually life of the author + 70 years).
Works that Were Never Eligible
Keep in mind that certain work are ineligible for U.S. copyright protection, and thus also in the public domain:
Ideas and facts
U.S. government works (although foreign government and state government works may indeed be protected, as may works funded but not produced by the federal government)
Scientific principles, theorems, formulae, and natural laws
Scientific and other research methodologies, statistical techniques, and educational processes
Laws, regulations, judicial opinions, and legislative reports
Words, names, numbers, symbols, signs, rules of grammar and diction, and punctuation
Note, however, that while copyright law does not protect facts, an author's original compilation, arrangement, or selection of facts may be protected. In other words, factual compilations may be protected even where the facts, themselves, are not. And, while words or short phrases aren't subject to copyright, they may be protected by trademark.
⇒ Is Publishing the Content Fair Use?
What Fair Use Is
Fair use allows people to exercise the otherwise-exclusive rights of the copyright holder without having to seek the copyright holder's permission.
But, fair use applies only under certain conditions (described below), and when use is for purposes such as teaching, research, scholarship, reporting, criticism, or parody.
Why it Exists
Congress created rights like fair use for users in order to encourage creative and scholarly debate and knowledge. Research and scholarship in the form of online scholarship seems like a shoo-in for fair use—after all, you're engaging in scholarship. But, the mere fact that you are using the material for scholarship does not inherently make use "fair."
Fair Use is Based on a Four-Factor Test
Your evaluation of fair use should apply the four-factor test set forth in Section 107 of the Copyright Act. Those four factors, along with tips, are included below.
You must consider each work you're seeking to publish on a case-by-case basis. This means that if, in one section of your project, you are using two diagrams created by an author, and in another section, you are excerpting from a different book, you must analyze each diagram and the excerpt separately under the fair use factors.
Assessing the four factors is never a legal certainty. To some extent, you will always be making a good-faith determination based on what we know of how the four factors have been applied in other cases.
When considering these factors, keep in mind that the fair use exception is purposefully broad and flexible to promote academic freedom, expression, education, and debate.
The following questions that courts often ask when they evaluate the four factors can also help your own assessment:
⇒ Are you planning on using the work in a different way, or for a different purpose, than the original creator? In other words, in copyright terms, is your use “transformative”?
⇒ Are you using an amount of that work that is narrowly-tailored to your new purpose?
The Four Fair Use Factors
The purpose and character of the use, including whether the intended use is commercial vs. for nonprofit educational purposes. Tip: Uses in nonprofit educational institutions are more likely to be fair use than works used for commercial purposes. This may work in your favor for publishing the project, but not necessarily a subsequent commercially-licensed database based on your project. See the FAQs page for more detail.
The nature of the copyrighted work.Tip: Republishing factual work is more likely to be fair use than incorporating a creative, artistic work such as a musical composition.
The amount and significance of the portion used in relation to the entire work. Tip: Using smaller portions of a work is more likely to be fair use than larger portions, or portions that represent the "heart" of the underlying work
Potential impact on the market for the original. Tip: Uses which have no or little market impact on the copyright holder's ability to sell or license the original work are more likely to be fair. If the copyright holder offers licenses for uses similar to yours, use of the work without that license could harm the market for the license--weighing against fair use.
Document Your Fair Use Analysis With a Checklist
Keeping records of your fair use analysis can be very helpful to show a court if your use is ever later challenged.
One great way to keep a record--and to help you with the analysis to begin with--is to fill out a checklist based on the four fair use factors.
Text mining for non-commercial scholarship is likely fair use (see Authors Guild v. HathiTrust, 755 F3d 87 (2d Cir. 2014), but we must distinguish between using materials to text mine vs. subsequently republishing what you downloaded or scraped for that analysis. Subsequently re-publishing the content, itself, rather than just your analysis of that content might not be fair use. You'll have to consider all four factors.
Further, even if text mining is fair use, we have to consider whether we've signed contracts that constrict what would otherwise be fair use. That is, even if the mining would be fair use, the database provider might have terms and conditions about how it is to be conducted or how the content can be used. This is explained in workflow Step 3's discussion of Contractual Limitations.