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Chapter 100: Patent and Copyright Law

100.010 Use of Copyrighted Materials in Teaching and Research

Executive Guideline No. 23, 11-1-84, Revised 2-15-05

  1. The Copyright Law and Fair Use -- Faculty and staff of the University of Missouri use copies of copyrighted materials to supplement or assist with their research and teaching. In many cases, the copies can facilitate the University’s mission of teaching and research. However, the copying of copyrighted materials is a right granted under the copyright law's doctrine of "fair use" which must not be abused.

    Copyright is a constitutionally conceived property right which is designed to promote the progress of science and the useful arts by securing for an author the benefits of his or her original work of authorship for a limited time. The Copyright statute implements this policy by balancing the author's interest against the public interest in the dissemination of information. The grand design of this delicate balance is to foster the creation and dissemination of intellectual works for the general public. The guidelines which follow are intended to assist faculty and staff in observing copyright requirements, while benefiting from Fair Use.

    Among the bundle of rights that constitute copyright is the right of reproduction and distribution. Thus, faculty and staff may freely copy and distribute works to which they hold the copyright, such as lecture notes, answer keys, tests, and the like. Throughout these guidelines, copyrighted materials refers solely to works to which someone else holds the copyright.

    It is important to note that copyright applies to intellectual property, not to the format or medium on which the material resides. Thus, these guidelines also pertain to downloading, copying, and distributing of materials in electronic format.

    Before making materials available electronically, whether on a website or through other educational tools such as course management systems, faculty and staff should be aware of the material's copyright status and ensure that distribution is limited to appropriate groups (students, research assistants, or the like). Generally a password for either the course page or the individual article is acceptable to limit access. (See Section C for additional guidelines.)

  2. Copying which is Unrestricted -- There are three categories of material which may be freely copied:
    1. Published works whose copyrights have expired -- Copyrighted works now have varying expiration dates depending upon publication date. Items published before 1923 are now in the public domain. Items published from 1923-1963 and containing a notice have a term of 28 years and can be renewed for 67 years. If not so renewed, they are now in the public domain. Items published from 1964-1977 when published with notice have a term of 28 years for the first term and an automatic extension of 67 years for the second term. Items created after January 1, 1978 (when the work is in a tangible medium of expression) have a term of life plus 70 years (or if the work is corporate authorship, the shorter of 95 years from publication or 120 years from creation)
    2. Some U.S. Government, some state and some foreign government publications.
    3. Those items that carry a statement permitting use as long as the source is cited and that the use is for educational, non-profit purposes.
  3. Copying which is Permitted Under the Fair Use Doctrine -- Faculty and staff may reproduce copyrighted works for instructional and research purposes without securing permission and without paying royalties when the circumstances amount to what the law calls "fair use." It is generally fair use for faculty or staff to copy supplementary items for such purposes as filling in missing information or for bringing materials up to date, but fair use is a multi-faceted concept. There is a lively dispute as to the extent of permissible copying, particularly for classroom use. Both the spirit and letter of these guidelines should be observed. According to Section 107 of the Copyright Act of 1976, when considering whether or not the reproduction of copyrighted materials would be considered fair use, four factors must be considered:
    • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    • the nature of the copyrighted work (e.g., fiction vs. non-fiction, published vs. non-published, etc.);
    • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    • the effect of the use upon the potential market for or value of the copyrighted work

    While not a law, these “Guidelines for Classroom Copying” have been an accepted standard for higher education for several years. The University of Missouri will continue to use them as the standard at this time, and sets them out in their entirety as follows:

    1. Single copies for teachers -- For teaching, including preparation, and for scholarly research, a faculty or staff member may make, or have made, a single copy of:
      1. a chapter from a book;
      2. an article from a journal, periodical or newspaper;
      3. a short story, short essay or short poem, whether or not from a collective work;
      4. a chart, graph, diagram, drawing, cartoon or picture from a book, periodical or newspaper.
    2. Multiple copies for classroom use - Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that:
      1. The copying meets the tests of brevity and spontaneity as defined below; and,
      2. Meets the cumulative effect test as defined below; and
      3. Each copy includes a notice of copyright.
    3. Definitions
      1. Brevity
        1) Poetry:
        a) A complete poem if less than 250 words and if printed on not more than two pages or 
        b) from a longer poem, an excerpt of not more than 250 words.
        2) Prose:
        a) Either a complete article, story or essay of less than 2500 words, or
        b) an excerpt from any prose work of not more than 1,000 words, or 10% of the work, which is less, but in any event a minimum of 500 words.
        [Each of the numerical limits stated in (a) and (b) above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.]
        3) Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.
        4) Special works: Certain works in poetry, prose or in “poetic prose” which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph (2) above notwithstanding, such “special works” may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced.
      2. Spontaneity
        1) The copying is at the instance and inspiration of the individual teacher, and
        2) The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.
      3. Cumulative Effect
        1) The copying of the material is for only one course in the school in which the copies are made.
        2) Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.
        3) There shall not be more than nine instances of such multiple copying for one course during one class term. [The limitations stated in (2) and (3) above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.]
        4) Prohibitions as to C1 and C2 Above
        Notwithstanding any of the above, the following shall be prohibited:
        a) Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or reproduced and used separately.
        b) There shall be no copying of or from works intended to be “consumable” in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material
        c) Copying shall not:
        i. substitute for the purchase of books, publishers’ reprints or periodicals;
        ii. be directed by higher authority
        iii. be repeated with respect to the same item by the same teacher from term to term.
        iv. No charge shall be made to the student beyond the actual cost of photocopying.
  4. Library May Place Material on Traditional Reserve in paper or other non-digital formats -- At the request of a faculty or staff member, a library may place in its reserve collection excerpts from copyrighted works, subject to the guidelines governing formal classroom distribution as outlined above. When the excerpts are removed from the reserve shelf, such material is to be returned to the faculty or staff member.
    1. If the request calls for only one copy to be placed on reserve, the library may copy an entire article, or an entire chapter from a book, or an entire poem. However, requests for multiple copies on reserve should meet the following guidelines.
      1. The amount of materials should be reasonable in relation to the total amount of material assigned for one term of a course taking into account the nature of the course, its subject matter and level;
      2. The number of copies should be reasonable in light of the number of students enrolled, the difficulty and timing of assignments, and the number of other courses which may assign the same material;
      3. The material should contain a notice of copyright;
      4. The effect of copying the material should not be detrimental to the market for the work.
    2. A reasonable number of copies will in most instances be less than six, but factors such as the length or difficulty of the assignment, the number of enrolled students and the length of time allowed for completion of the assignment may permit more in unusual circumstances. If there is doubt as to whether a particular instance of copying is fair use in the reserve reading room, the permission of the publisher should be sought.
       
      The library may also assist faculty in placing materials on electronic reserve for use by both on-site and distance learning students. Sections (a) 1, 3, 4 above apply to electronic as well as paper-based reserve. The “Technology Education and Copyright Harmonization Act” of 2002 contains information to assist in determining what may be transmitted digitally in support of distance learning and should be consulted under those circumstances. The Law is a complete revision of Section 110(2) of the U.S. Copyright Act. Faculty and staff not utilizing the Library’s electronic reserves, should be aware of the requirements specified under the TEACH Act and how fair-use guidelines apply to both digital and analog transmission of a work. Transmission of a work must be made by or at the direction of an instructor as part of a class. Additionally, safeguards must be incorporated into the transmission of digital works to minimize the risk of copyright infringement through unauthorized downstream distribution. Finally, transmissions of copyrighted works should be limited to official course enrollees.
  5. How to Obtain Permission -- When a use of copied material requires permission, complete and accurate information should be sent to the copyright owner. The American Association of Publishers suggests that the following information be included in a permission request letter in order to expedite the process: Title, author and/or editor, and edition of materials to be duplicated.
     
    Exact material to be used, giving amount, page numbers, chapters and, if possible, a copy of the material. Number of copies to be made. Use to be made of duplicated materials. Form of distribution (classroom, newsletter, etc). Whether or not the material is to be sold. Type of reprint (ditto, photography, offset, typeset).
    1. The request should be sent, together with a self-addressed return envelope, to the permissions department of the publisher in question. If the address of the publisher does not appear at the front of the materials, it may be readily obtained from the library.
    2. The process of granting permission requires time for the publisher to check the status of the copyright and to evaluate the nature of the request. It is advisable, therefore, to allow enough lead time to obtain permission before the materials are needed.
    3. The Copyright Clearance Center also has the right to grant permission and collect fees for copying rights for certain publications. Libraries may copy from any journal which is registered with the CCC and report the copying beyond fair use to CCC and pay the set fee. The various campus libraries should be consulted for assistance in this process. Many already have a relationship established with CCC and a process in place to pay royalties.
  6. Obtaining Copies by Means of Interlibrary Loan -- Requests for copies of articles, etc., owned by other libraries must also conform to the copyright law. The various campus libraries will provide information on interlibrary lending policy upon request.

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