H-Net: Humanities & Social Sciences Online
 

H-Net is a nonprofit communications service intended to advance the teaching, research, and service of scholars, educators, and students. Preserving copyright rights is a collective responsibility: H-Net users and editors must respect the intellectual property of others. Consistent with the objective of encouraging creativity in scholarship and education, editors and users are encouraged to transmit copyrighted works to or through H-Net, with the express permission of the copyright holder or in accordance with the fair use provisions of copyright law. H-Net considers posting to H-Net lists or Web, as contrasted with private email correspondence, to be a form of "publication."

Commissioned works: Unless otherwise indicated, book reviews, essays, and multimedia materials commissioned by H-Net are copyrighted by H-Net. H-Net permits the redistribution and reprinting of these materials for nonprofit, educational purposes, with full and accurate attribution to the author, location, date of publication, and H-Net: Humanities & Social Sciences Online. For any other proposed use, contact the executive Director.

Original messages: Although authors of messages to H-Net lists retain the copyright in those messages, sending a message to an H-Net list for posting will constitute permission to H-Net and its subscribers for electronic distribution and downloading for nonprofit educational purposes with proper attribution to the author, the originating list, and the date of original posting. If an author wishes to limit distribution of messages by subscribers, he or she should so specify in the message. Original messages to H-Net lists are not in the public domain, and may not be used for other than educational, nonprofit purposes without the permission of the copyright holder and notification to H-Net.

Forwarded, nonoriginal content: Senders of messages must obtain permission to reproduce copyrighted work beyond the scope of "fair use." Editors must make a good-faith effort to confirm that material whose origin or content appears to be entirely derivative or nontransformative and which exceeds fair use does not violate copyright in the original.

'Fair use': Title 17, Chap. 1, Sec. 107 of U.S. copyright law permits the reproduction of copyrighted material without permission of the copyright owner if the reproduction constitutes "fair use." The statute reads:

The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means ..., 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.

The consideration of these factors by courts is cumulative, as each factor is weighted according to the degree it serves the ultimate purpose of the fair use exemption: the advancement of knowledge and scholarship by allowing sufficient flexibility under copyright rules to permit and encourage the crucial process of one author's building upon earlier authors' work by being able to reproduce limited portions of it for nonprofit, educational, and scholarly uses. It is within that context that H-Net considers the meaning of fair use. For instance, the fact that H-Net is an educational, nonprofit organization does not alone entitle editors to duplicate copyrighted materials in toto. The Supreme Court has indicated, in Campbell vs. Acuff-Rose (1994), "the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement" (114 S.Ct. at 1174). Therefore we recommend that editors should avoid posting a text if that would materially undercut the market value of the text. Editors should consider the pertinent facts related to the material's origin and the context in which it is to be used. If they then believe that copying the work is consistent with their list's mission, they should make good-faith efforts to see that its use inclines as much as possible in the direction of encouraging new works of scholarship or disseminating new information and knowledge. In general, this means that the mere labeling of a duplication as "fair use" or the transmission of a copy to a listserv for scholars and teachers does not alone establish it as a fair use. The "transformative" character of the use is an important consideration when deciding whether and how much to duplicate and distribute.

Given the legal uncertainty surrounding "fair use" in the digital environment, editors and advisory boards are encouraged to place any reproductions as fully as possible within the educational, nonprofit, and transformative context of their list or web site. This could include, but is not limited to, extended quotation of the work; prefatory comments or questions that frame the work within an existing thread, that prompt new discussions, or that point to new directions in research; summaries of the work, reinforced by quotations or excerpts and references to the original source.

All reproductions of works in part or whole should be clearly identified. With the exception of short quotations or excerpts occurring as part of a spontaneous or developing discussion, the author, copyright holder, original source, title, copyright statement, and, in the case of materials obtained from the World Wide Web, the URL of the material being reproduced, must be included in the message. Care should be taken in formatting and presentation to preserve the integrity and legibility of the original. Mel Page's Internet Citation Guide as well as the major style manuals provide specific guidance as to the proper form for citing digital materials.

When considering the reproduction of an entire copyrighted work (or an entire news article from a news web site), it might be helpful to use the following criteria. Government documents and materials whose copyright has expired fall within the public domain; journal tables of contents may be reprinted without permission.

Rules of Thumb for Using Copyrighted Material/p>

  1. Is the posting consistent with the network's mission as stated in its Welcome Message?
  2. At the site of origin, is access to or use of the material restricted? The law does not require a copyright statement in order to establish copyright rights, so the specification of any rights, terms of use, limitations on access via passwords, fees, or subscriptions, are important indicators of the strength of the owner's proprietary interest in the material. It also pays to check whether the owner openly permits retransmission or redistribution if properly credited.
  3. Has the editor or sender requested permission from the owner to distribute the entire piece? Permission is not required and should not be sought if the use is a "fair use" under current law. The editor should decide whether a case for fair use is strong enough to preclude asking permission. Seeking permissions is not inherently difficult; H-Net can assist in this procedure.
  4. If the editor decides that there is a good case for fair use duplication of the work, then the question is the degree of risk the editor is willing to take, because there is no automatic standard that triggers an impregnable case that a use is a fair use. So the character, quantity of copies, and context of the use are important, because they can establish additional evidence that the use approaches the larger objective of advancing knowledge. Will the form and content of the message provide sufficient evidence to a reasonable person that redistributing it in whole or part offers a unique contribution to existing resources, or will it just duplicate material readily available elsewhere? Has the editor already posted other entire texts in the recent past? An average of one reprint per month poses no problems but editors should pause and ponder before going beyond that rate. Editors should be aware that posting to a list usually entails storage on the World Wide Web under a stable, permanent, accessible URL.
  5. Is the distribution of the work in its entirety necessary to a purpose clearly indicated in the prefatory questions or other contextual material? The editor should consider why the entire article must be distributed instead of excerpted, quoted, referenced, summarized, or otherwise presented.

H-Net Internal Procedure for Resolving Disputes over Posting of Copyrighted Materials

  1. The first, and normally the final, locus of decision is with the editor and network advisory board. This decision should be taken in consultation with the fellow editors and advisory board and, where necessary, MSU's intellectual property attorneys.
  2. The editorial affairs committee will consider such cases that are referred to it by the editors and board, or by a copyright-owner appealing the final decision of the list. If referred to the editorial affairs committee, the committee will consider the case, apply the criteria outlined above, consult with outside experts and the H-Net copyright committee where necessary, and give its opinion.
  3. If the opinion of editorial affairs is disputed, then the matter is referred to the executive committee, whose decision would be binding unless overturned by legal authorities.
  4. As editor-in-chief of H-Net, the associate director will serve as facilitator in the appeals process.

Materials and Resources on Fair Use and Copyright

This page will link to important resources editors can consult when considering how to handle copyrighted materials. This will include links to the Copyright Clearance Center, the Stanford Fair Use Site, the ALA site on current copyright legislation, the pertinent copyright laws and treaties, and informative sites that have interpretive essays and materials.