Page:The librarian's copyright companion, by James S. Heller, Paul Hellyer, Benjamin J. Keele, 2012.djvu/77

Chapter Four. Fair Use (Section 107) addresses this situation, so we will use the four-factor test set forth in section 107.

Under the first factor, which considers the purpose and character of the use, the example described above appears to be neutral. Although the use is not directly connected to traditional fair use purposes such as teaching, criticism or scholarship, it is nonetheless a non-profit use that indirectly supports education. However, the character of the use is non-transformative, and thus not favored. The second factor, which involves the nature of the copyrighted work, also appears to be neutral. Library Journal isn’t as creative as the New Yorker, but it’s more than a mere factual report. Under the third factor, which depends on the amount copied in relation to the work as a whole, copying only a short excerpt from an issue of Library Journal would weigh in favor of fair use. Finally, the fourth factor, which considers the effect of the copying on the market for the work, seems to weigh in favor of fair use, assuming that the library already has a paid subscription and the copying doesn’t substitute for a need to purchase multiple subscriptions.

The Bottom Line: Copying of this sort is going to be a closer call than copying that has a more direct connection with educational or scholarly purposes, but it should still qualify as a fair use provided that the original copy is purchased by the institution and the amount of copying is modest.

Copies for Library Reserve and Course Web Sites

Many instructors make copies of course materials available to students outside the classroom. When the ALA’s Model Policy was developed, this copying was done in paper format and placed on reserve in the library. Now