U.S. copyright law protects creative work from being copied, altered, distributed, or performed without the permission of the owner and/or creator. It also recognizes that students, teachers, and researchers must be able to use and adapt the copyrighted work of others in scholarship. Title 17 Section 107, “Limitations on Exclusive rights –Fair Use,” states:

“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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.” (17 USC 107)

The law and Bates College Copyright Policy require you to make, and if necessary defend, a reasoned judgment about fair use of others’ work. This document is intended to help you make this judgment as you prepare a work for publication in SCARAB, the college’s mechanism for storing and distributing research and scholarship.

How does the concept of “fair use” affect your thesis, paper, or presentation?

If you create work a) for a course at Bates, including an independent study or a thesis tutorial, and b) that work will never be seen or distributed outside the course, you don’t need to be too concerned. It is unlikely that your paper, project, or presentation is a serious infringement of copyright. No matter what form it might take, your coursework is considered to be for “nonprofit educational purposes,” and if you don’t give away copies or post them on the Internet, your work has very little chance of affecting the potential market for the original.

If you create an Honors Thesis or any other work for a course at Bates and include it in the SCARAB repository, you must carefully consider whether your use of others’ work is “fair” (as legally defined above) or whether it infringes on the rights of the copyright owner. Copyright law does not give exact rules or definitions of what fair means, but it does give guidance in the form of a four-factor test. The four factors, taken as a whole, should lean toward “fair” in your analysis, and the fourth factor should always lean toward “fair.”  See the Thesis Writers Guide for examples.

(Factor 1) Purpose and character: Is your work a piece of scholarship, or is it for commercial purposes? If the work you are submitting is your thesis or a product of your course work at Bates, it is always considered to be educational for the purposes of SCARAB, so in those cases factor one leans toward fair use. If the work you are submitting was created by you outside class (for example as part of a project you are doing in the community), this factor may not be as clear cut, but may still lean towards “fair.”

(Factor 2) Nature of the copyrighted work: The word “nature,” can mean many things in this case: Is the work [A] published or [B] unpublished? Is it [A] more than 90 years old or is it [B] newer? Is it [A] a scientific fact, or [B] a work of art? Is it [A] common public knowledge or [B] information created for sale or license to individual users? In all these cases, answer [A] leans toward fair use. Answer [B] leans away.

(Factor 3) The amount and substantiality of the portion used: The best guidance on “amount” is to use as little of someone else’s copyrighted work as you need to support your scholarship. The more you use, the less likely it is that your use is fair. With regard to “substantiality,” consider whether the reproduction or distribution of your work means that no one will need or want to consult the original. If it does, it is less likely that your use is fair.

(Factor 4) Effect on the market or value of the work: Even if the other three factors point to “fair use,” you should carefully consider whether publication and distribution of your work might take away the value of the original work. If you conclude that your use of someone else’s work will undercut its value in the marketplace, you should conclude that the use is not “fair” and you should limit the amount or quality of the material you use until this factor leans toward “fair.” Here are some examples. If a work is unpublished, your quotation or use of even a tiny part might prevent it from ever being published. If you are using textbook worksheets or television ratings data that are created and packaged solely to be sold to subscribers, any distribution on your part might prevent the owners from selling their work. Museums support their collections by licensing use of photographs of their art and audio tours of their collections, so distributing or publishing your copy of these materials may directly affect the market for that museum’s services. On the other hand, the inclusion of an entire video of a television commercial in your final submission might be the only way that your readers will ever gain access to the thing you have seen, and your inclusion or redistribution will not have an effect on either the market for the product or the market for advertising.

What should you do?
• Keep researching and writing!
• As you structure your paper, be sure to talk with your advisor about other people’s work that you would like to include in your project.
• If you use special material, such as a psychological scale, make sure that you have permission to quote, reproduce or otherwise duplicate any of its content before you do so.
• Use only what you need.
• When possible, provide a link or citation for other people’s works rather than reproduce them.
• If you have doubts, ask yourself if there is a different work you could use whose use would be fair.
• You may request permission of the copyright owner to reproduce the work in question. This may be a time-consuming and costly process, particularly if you are reproducing a work of art, but it is always possible to ask. Library staff members can help you identify who the owner is.
• If you need to include something in excess of what you determine to be “fair use,” consider removing it at the time you upload your final copy into SCARAB. If that’s not possible, you will need to restrict access.

There are many resources to help you through this analysis. At Bates, we often refer writers to the Copyright Crash Course from the University of Texas, which is detailed enough to be thorough, but written in plain language. Columbia University Libraries provides a Fair Use Checklist which includes examples of the four factors. At Bates, see Chris Schiff, Music and Arts Librarian, 786-6274, cschiff@bates.edu.

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^{Copyright for theses, papers, and presentations submitted to SCARAB, Reviewed by: Christopher Schiff, February, 2019}