LIBRARIES | Blog

Liz Hamilton is the copyright librarian for Northwestern Libraries and University Press. She responds to all kinds of copyright questions, from information on copyright law to guidance on using copyright resources — though she is quick to remind her audiences, “I’m a librarian, not a lawyer, and can’t provide legal advice. What I can do is provide information about the law.”

For a personalized consultation about a particular issue, she is just an email away for the members of the Northwestern community.

“Copyright can be very nuanced, so there’s not always an easy answer,” she said. “But I can help members of the community think through the relevant issues in order to find a solution that works for that situation.”

Liz has been in high demand this quarter, but she found time to have a quick conversation about the state of copyright in a COVID-19 world:

Since the decision to move classes online for spring quarter, you’ve held a number of digital workshops for the University community about understanding copyright. Are instructors feeling more stress than usual about this topic?

HAMILTON: On the whole, definitely yes. With copyright, once you go digital, everything gets a little more complicated. Digital distribution by its very nature involves making a copy of a given work, and licenses and terms of use surrounding that material can seem daunting. In addition, libraries across the globe are closed for an unclear period of time, so we’re dealing with both the usual question of “can I use X on my course site?” and the additional complication of “is it even possible to get a digital copy of X if the library is closed?” 

The copyright stress isn’t just limited to higher education — I’ve heard from public librarians, school librarians, and even churches who are trying to figure out what they can and can’t do online. The only folks I can think of who aren’t feeling stress about this topic are the ones who have decided not to think about it at all — but I’d encourage them to start, because copyright in online courses is often not as prohibitive as it first seems. 

How are all these lecturers getting digital alternatives to the physical materials they used to assign?

HAMILTON: In a number of different ways! 

• If there’s an ebook available, some lecturers are requesting that the library purchase it. Subject librarians are paying close attention to requests for ebooks of material we may already hold in print. 
• A number of publishers and vendors have opened up their digital collections on a temporary basis — the library is maintaining a guide of what’s available. 
• Digital libraries like HathiTrust and the Internet Archive are using fair use to open their scans of printed material more broadly than they have in the past. 
• Some instructors are turning to Open Educational Resources as an alternative to having students purchase textbooks. 
• In cases where it’s still possible for students to order print textbooks to be delivered where they are, instructors can continue to assign them as course material. 
• Last but not least, some instructors are scanning material, if they happen to own a print copy of it. This can be a great option, as long as they’re using fair use to evaluate what they’re scanning and how much of it.  

Fair use seems to be at the heart of these conversations. It sounds like it gives instructors a lot of leeway to use copyrighted materials. Is it a license to use anything I want in my class?

HAMILTON: Not quite! But fair use continues to be an important copyright exception. It was designed to be flexible and apply to many different situations. 

Fair use allows users to make use of a copyrighted work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Whether a use is fair is based on the four factors of fair use:

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.

Keep in mind that the factors have to be evaluated together — just because one factor favors fair use doesn’t mean that the use is automatically fair. Likewise, just because one factor opposes fair use doesn’t mean you can’t use it! You have to look at all of the factors as a whole. There are some great tools that can help you make fair use decisions – the Fair Use Checklist is one of my favorites. 

I’ve heard you go over these factors in your workshops. It’s where I hear you use this phrase a lot: “It depends.” What are the most common fair use hypotheticals that turn “it depends” into “you’re good to go”?

HAMILTON: There aren’t any universal truths, unfortunately, but for digital uses in academia a lot will depend on the third factor (amount) and fourth factor (effect on the market). How much of a work are you using? Is it an appropriate amount for your use? And how much are you impacting the market for the work? 

In terms of the third factor, amount and substantiality: consider both whether the amount is small in relation to the work as a whole, and also whether the amount is appropriate for your use. In many cases, a chapter is more likely to favor fair use than an entire book. But in some cases, you might need a little more than that to get your point across to your students — or a little less! If you’re teaching an art history class, you may need to include entire works of art in your slides in order to discuss them with students. Writing classes may need to look at entire poems. Again, you have to consider all the factors together, so while amount is important, it’s not the only consideration.

In terms of the fourth factor, effect on the market: How widely available is the work you want to digitize? If you’re trying to use a full length book that your students could reasonably order their own copies of online, your fair use argument might lose ground. But if you’re trying to use a book that’s long out of print by a defunct publisher and you can’t locate the rightsholder, you may have a much stronger fair use case. Also consider how widely you’re making the works available. If you discuss images of paintings in your slides but only make your lecture available on Canvas, you’re impacting the market differently than if you were to make your lecture available in a public YouTube video. Similarly, distributing readings to students behind the Canvas login would be different than posting them on a public-facing website. And again: Look at the effect on the market alongside the other factors. 

I’ve seen online sites that offer digital versions of books for free. If the Libraries don’t have the ebook I need, is it safe to get one from one of these sites?