IV - 3.10(A) - UMB GUIDELINES ON REPRODUCTION OF COPYRIGHTED MATERIALS

(Approved by the Board of Regents, May 31, 1990)

(Approved by the President, June 1989)

PURPOSE

To provide faculty and staff of UMB with guidelines concerning permitted and prohibited reproduction of copyrighted materials for use in research, instruction, or publications.

In general, the 1976 Copyright Act provides that under most circumstances copyrighted materials cannot be reproduced in whole or in part without the consent of the person who owns the copyright. A copyrighted item identifies the person who owns the copyright with a legend such as "Copyright 1980 University of Maryland." The 1976 Copyright Act permits "fair use," i.e., limited reproduction of copyrighted material without the permission of the author of the material, provided that in the reproduction (1) the original authorship of the copyrighted material is recognized and (2) the fact that the material is copyrighted is noted.

Each faculty or staff member who reproduces copyrighted material while preparing a document copyrightable by that faculty or staff member under University policies is responsible for determining whether the reproduction is a permitted "fair use." The University cannot provide legal advice to faculty or staff to assist in making such determinations. The University need not, but may, provide legal counsel to defend faculty or staff in actions for breach of copyright laws.

The President or a senior administrator designated by the President is responsible for determining whether a use of copyrighted material is a "fair use" if the material will be used in a document copyrightable by the University. The President or his designee may make such discretionary decisions, seeking the advice of University legal counsel if necessary.

The University need not assume responsibility for the legal defense of any faculty member who exceeds the Guidelines unless he/she did so in the course of preparing an item copyrightable by the University and with the prior concurrence, in writing, of the President or his designee.

DEFINITION AND OWNERSHIP OF COPYRIGHT

A copyright is the legally protected right of an author of a work to prevent others from copying the work. Copyrightable "works" include literary and instructional materials, audiovisual materials, photographs, computer software, and sound recordings.

As a general matter, faculty or staff members retain ownership of copyrights of materials produced by them in the course of research, teaching, and publication efforts.

Exceptions are:

Materials prepared with special support from the University:

Materials prepared with fiscal support from sponsors which require that the University claim copyright interests or that the University license or assign copyright interests to the sponsor.

Materials prepared for University use in institutional publications (e.g., chapters in catalogues or handbooks).

University policies concerning ownership of copyright interests are published in the University System of Maryland Policies and Procedures Manual, Part IV. The President or his designee will consult with faculty or staff interested in determining whether or not the University claims the copyright interest in any specific copyrightable material.

"FAIR USE"

The 1976 Copyright Act, Section 107, provides that the "fair use" of a copyrighted work, including such use by reproduction in copies or phonorecords 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 "FAIR USE" GUIDELINES
The Guidelines are specific guidelines for classroom use copying in not-for-profit educational institutions such as UMB with respect to books and periodicals. The Guidelines were incorporated in the House Committee Report on Section 107 of the 1976 Copyright Act. The Guidelines state the minimum and not the maximum standards of educational "fair use." There may be instances in which copying which does not fall within the Guidelines may be permitted under the criteria of "fair use." The House Committee has stated that the guidelines are not intended to limit the types of copying permitted under the standards of "fair use" to those expressly mentioned. Conversely, the Guidelines may describe copying which is not allowed by the 1976 Copyright Act. Ultimately, federal courts interpreting the 1976 Copyright Act will determine what uses constitute "fair use."

The Guidelines are reprinted as Attachment 1 to this policy.

COMMENTS CONCERNING THE "FAIR
USE" GUIDELINES

Faculty and staff members may wish to use the Guidelines in Attachment 1 in cases where it is their personal responsibility to make decisions concerning "fair use." However, the University does not represent or guarantee that all copying permitted by the Guidelines is permitted by the 1976 Copyright Act. Faculty may wish to consult their own attorney.

The following points should be considered by faculty and staff members utilizing the Guidelines.

1. Certain journals and periodicals, although copyrighted, permit multiple copying for educational use. If so, a notice will appear at the page where the copyright is printed. If you do not see a printed notice, do not assume that you have permission to reproduce from the journal or periodical.
2. Neither a "not-for-profit" nor an "educational" exemption from the 1976 Copyright Act exists. However, the nonprofit or educational character of a use should be considered along with other factors in deciding whether the "fair use" doctrine is applicable.
3. Libraries may supply requested single copies of out-of-print works and, regardless of whether they are out-of-print, single copies of journal articles or contributions, or contributions to collective works or small parts of other works.
4. The notice of copyright required by Section II.C. of the "fair use" Guidelines should specify when and by whom the original work was copyrighted.
5. In the Guidelines, the section entitled "Prose" within the definition for "Brevity" refers to literary medium other than poetry. Such mediums include, among other things, articles from professional or scholarly journals and books
6. Duplication of hand-outs long in advance of their distribution to students would most likely violate the "Spontaneity" requirement of the Guidelines.
7. Multiple copying and systematic reproduction of copies require the prior permission of the copyright owner. Section III.C.c. of the Guidelines prohibits the same teacher's repetitive use of copies from one term to another. That is not spontaneous use.

HOW TO OBTAIN PERMISSION

When a proposed use of photocopied material requires a faculty or staff member to request permission, communication of complete and accurate information to the copyright owner will facilitate the request. The request should be sent, together with a self-addressed envelope, to the "permissions department" of the publisher in question or to the author if no publisher is involved. As this process can take time, faculty or staff members should allow sufficient lead time. If the publisher assesses a fee for permission, the fee may be passed on to students who receive copies of the photocopied materials. A sample letter to a copyright owner is Attachment 2. If time is short, oral permission should be obtained and documented through a subsequent exchange of letters.

"FAIR USE" CERTIFICATION FORM

It is recommended that faculty or staff members requesting University copy centers to reproduce multiple copies of copyrighted works complete a "Fair Use" Certification Form at the time copying services are requested and maintain it in their files along with the work copied for their own protection. A sample form is Attachment 3. Faculty and staff may wish to use a different form recommended by their attorneys.

NOTE: These guidelines are based on federal law, the Copyright Revision Act of 1976 ("1976 Copyright Act"), and related guidelines ("Guidelines") endorsed by the House of Representatives.

"FAIR USE" GUIDELINES

I. SINGLE COPYING FOR TEACHERS

A single copy may be made of any of the following by or for a teacher at his or her individual request for scholarly research or use in teaching or preparation to teach a class:

1. a chapter from a book;
2. an article from a 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.

II. MULTIPLE COPIES FOR CLASSROOM USE

Multiple copies (not to exceed in any event more than one copy per student 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. the copying meets the cumulative effect test as defined below; and
3. each copy includes a notice of copyright.

Definitions

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, and excerpt of not more than 250 words.
2. Prose: (a) either a complete article, story, or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10 percent of the work, whichever is less, but in any event a minimum of 500 words. (Each of the numerical limits stated in "1" and "2" 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 not withstanding, 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 percent of the words found in the text thereof, may be reproduced.

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.

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 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.

III. PROHIBITIONS AS TO I AND II ABOVE

Notwithstanding any of the above, the following shall be prohibited:

1. 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 are reproduced and used separately.
2. There shall be no copying of or from works intended to be "consUMBle" in the course of study or of teaching. These include workbooks, exercises, standardized tests, and test booklets and answer sheets, and like consUMBle material.
3. Copying shall not:
   1. substitute for the purchase of books, publishers' reprints, or periodicals;
   2. be directed by higher authority;
   3. be repeated with respect to the same item by the same teacher from term to term.
4. No charge shall be made to the student beyond the

   actual cost of photocopying.

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ATTACHMENT 2

Sample Letter

Material Permissions Department
XYZ Book Company
100 Main Street
New York, New York 12345

Dear Sir/Madam:

I would like permission to copy the following for use in my class next semester:

Title: Life Cycle of the Frog, 3rd Ed.

Copyright: XYZ Book Co., 1958, 1971, 1980.

Author: John Doe

Material to be duplicated: Chapter 3 (photocopy enclosed)

Number of copies: 75

Distribution: The material will be distributed to students in my class, and they will pay only the cost of photocopying.

Type of reprint: Photocopy

Use: The chapter will be used as supplementary teaching materials.

I have enclosed a self-addressed envelope for your convenience in replying to this request.

Sincerely,

(Name)

"Fair Use" Certification Form

TO: THE FILE

FROM: (Name of Faculty or Staff Member)

SUBJECT: Request for Reproduction of

CHECK ONE:

/ / I certify that I have obtained the copyright owner's permission to reproduce the above listed work.

OR

/ / I certify that I have read the University's policy on reproduction of copyrighted material (UMB Administrative Policy and Procedure No. 7-3) and Sections 106, 107 and 501 (a) of the Copyright Act of 1976 printed on the back of this form, have considered the factors contained therein, and believe that my requested reproduction of the above listed work is a "fair use" under section 07.

Sincerely,

SECTIONS 106, 107 AND 501 (a) OF THE COPYRIGHT ACT

SECTION 106. EXCLUSIVE RIGHTS IN COPYRIGHTED WORKS

Subject to sections 107 through 118, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

1. to reproduce the copyrighted work in copies or phonorecords;
2. to prepare derivative works based upon the copyrighted work;
3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and
5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.

SECTION 107. LIMITATIONS ON EXCLUSIVE RIGHTS: "FAIR USE"

Notwithstanding the provisions of section 106, 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.

SECTION 501. INFRINGEMENT OF COPYRIGHT

(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 118 is an infringer of the copyright.