Copyright

Introduction

As a graduate student at Missouri S&T, you will be involved in publishing your thesis, dissertation, journal articles, or other publications. It is important that you begin to think about your own intellectual property, and how best to facilitate sharing of your own work.

As a scholar you will encounter the paradox of accessing the work of others, while utilizing copyright to protect you own intellectual property. This guide is intended to serves as a resource guide toward a fuller understanding of your rights and responsibilities.     

What is copyright and what do you need to know?

Copyright law in the United States is based on the  British Statute of Anne of 1710. The U. S. Constitution states:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors exclusive Right to their respective Writings and Discoveries." (U.S. Constitution, art. I, § 8, cl. 8)

 Let’s explore the clause:

• “exclusive right”: The intention of the law to provide authors and creators motivation by allowing a period of time during which they can profit from their work. (a temporary monopoly on their own work)
• This temporary monopoly is balanced by the "limited Times." By limited the temporary monopoly the constitution acknowledges the social value and necessity for the public to access those works. This aspect is essential scholars, who are concerned with the creation and distribution of knowledge, as well as the ability to access the scholarship and works of others.
• Originality and fixity are the other key concepts. Copyright protects "original works of authorship" that are fixed in a tangible medium, including via electronic devices. Anything you write down or record electronicky  is protected by copyright so long as it is your original work is posses some minimal form of creativity. 

Copyright is is not one right, but a collection or bundle of rights. These rights are described in section 106 of U.S. copyright law. The most relevant to you as an author include the rights to:

• reproduce the work (make copies)
• create derivative works (eg., remixes, translations, adaptations, sequels etc.)
• control its distribution
• public performance or display of the work

More Information about Copyright

Do you own the copyright of your thesis or dissertation?

According to the University of Missouri Collected Rules and Regulations section 100.030 Copyright Regulations sub-section 5:

1. In general, students of the University of Missouri will be entitled to own any copyrightable works made during their enrollment as a student of the University and will generally not be required to assign his or her ownership to the University; provided, however, the foregoing general rule does not apply and the student will be required to assign his or her ownership interest to the University in any circumstance in which the student is a University employee, provided such copyrightable work was created in the course of the student-employee's service to the University.

   Without limiting the language of the foregoing general rule or the language of the foregoing exceptions to the general rule, the following are examples of fact situations in which the University will not claim ownership of copyrightable work made by a student of the University:

   1. The copyrightable work was created by a student as part of a University class project using no greater University resources than those generally available to all other students within the class or than those available to the student as part of his/her enrollment with the University.
   2. The copyrightable work was created by a student as part of a University approved student competition using no greater University resources than those generally available to all other students within the competition or than those available to the student as part of his/her enrollment with the University. The student shall be entitled to receive any monetary or other prize awarded to the student for his/her performance under such competition in accordance with the rules of the competition and such prize shall not be considered compensation whereby such student would be considered an employee solely based upon receipt of such prize.
   3. The copyrightable work was created by a student as part of a University approved extracurricular activity, using no greater University resources than those generally available to all other students participating in the activity or than those available to the student as part of his/her enrollment with the University.
   4. The copyrightable work was created by a student on his/her own free time, outside of any University class or sponsored activity, and using no greater University resources than those generally available to all other students as part of their enrollment with the University.
   5. The student is a full-time student receiving compensation for services rendered to the University which services are unrelated to research or investigation and are unrelated to the creation of computer software.

Sub-section 2 stipulates:

The University will own the copyright in materials that are:

1. commissioned for its use by the University; or
2. created by employees if the production of the materials is a specific responsibility of the position for which the employee is hired; or
3. sponsored works, which are works resulting from internal grants (work created as a result of an agreement between the University and the creator(s) of the work) and external grants (work created as a result of an agreement between an external sponsor and the University). This provision does not apply to grants to perform research where the production of copyrightable materials is ancillary to the purpose of the grant. Employees continue to own the copyright to scholarly and other publications that present the findings of research, subject to the provisions of subsection 2 herein; or
4. created with the use of substantial University resources which are specifically provided to support the production of copyrightable materials.

If you are an employee of the university and conducting research, or your research is sponsored by an internal or external grant you may not own copyright the thesis/dissertation generated for your research activities. In these circumstances a contract stipulating this should exist. You should discuss this with your advisor.

Do you need to register your work to have copyright protection?

No, there is no need to formally register your work. Your work was afforded copyright protection the moment it was created. The benefit of registering the copyright of a work is that  in the event your copyright is infringed, you would able to sue for punitive damages as well as actual damages; if you do not register your copyright you can collect only actual damages. 

More Information about Registering your Work

When do you need to seek permission to use the work of others?

To use the work of others such as reproduced images or charts, music, long quotations, standard tests or computer software etc., you should determine whether simple attribution is sufficient, or if your intended use requires you to seek permission of the copyright holder. Crediting the source does not eliminate your obligation to seek permission. Sources must always be credited to avoid plagiarism.

You do not need to seek permission when:

• The work is in the public domain. Public domain works include any work written before 1923, and some works authored afterwards. Determining the copyright status can be very tricky. Cornell University Library provides a regularly updated chart of U.S. Copyright Terms and the Public Domain.
• The work in question is openly licensed, such as a Creative Commons license, or the author has otherwise explicitly granted permission. Look for the CC symbol displayed on the work or a statement by the author in the work, typically on the title page. Many web sites and blogs are licensed this way. You should also investigate open access journals for research in your discipline.
• You follow fair use guidelines. Fair use guidelines are discussed below.

What is fair use and why is it important?

Just as you as a copyholder have certain rights, users are also granted rights in the form of fair use. Fair use is intendeds to encourage creative work and support research by placing limitations on the exclusive rights of copyright holders. Fair use is described in section 107 of the Copyright Act which states that for the purposes of criticism, comment, news reporting, teaching, scholarship, or research, some activities do not infringe on copyright. Academic freedom and free speech depend upon the informed and active assertion of the fair use doctrine.  

To determine whether you are within fair use, the law calls for a balanced application of four factors. The following identifies and explains the significance of the factors as they relate to many university needs.

1. Purpose and character of the use. The fair use statute itself indicates that nonprofit educational purposes are generally favored over commercial uses. In addition, the statute explicitly lists several purposes especially appropriate for fair use, such as criticism, comment, news reporting, teaching, scholarship, or research. These activities are also common and important to research and teaching.
    

   Courts also favor uses that are “transformative,” or that are not merely reproductions. Fair use is more likely to be found when the copyrighted work is “transformed” into something new or of new utility or meaning, such as quotations incorporated into a paper, or perhaps pieces of a work mixed into a multimedia product for your own teaching needs or included in commentary or criticism of the original.

2. Nature of the copyrighted work. This factor centers on the work being used, and the law allows for a wider or narrower scope of fair use, depending on the characteristics or attributes of the work.. Creative, imaginative, or unpublished works are afforded the greatest protection, where as  facts, data, ideas and U.S. government work are considered part of the public domain. Use of a work that is commercially available specifically for the educational market is generally disfavored and is unlikely to be considered a fair use.
   
   Courts tend to give greater protection to creative works; consequently, fair use applies more broadly to nonfiction, rather than fiction. Courts are usually more protective of art, music, poetry, feature films, and other creative works than they might be of nonfiction works.
    
3. Amount and substantiality of the portion used. Less is more-- that is, using a smaller percentage of the work as a whole is more likely to be considered Fair Use. However, even if your selection is quantitatively modest, if it constitutes the heart or essence of the work, it may weigh against fair use.
   
   Courts have ruled that even uses of small amounts may be excessive if they take the “heart of the work.” For example, a short clip from a motion picture may usually be acceptable, but not if it encompasses the most extraordinary or creative elements of the film. Similarly, it might be acceptable to quote a relatively small portion of a magazine article, but not if what you are quoting is the journalistic “scoop.” On the other hand, in some contexts, such as critical comment or parody, copying an entire work may be acceptable, generally depending on how much is needed to achieve your purpose. Photographs and artwork often generate controversies, because a user usually needs the full image, or the full “amount,” and this may not be a fair use. On the other hand, a court has ruled that a “thumbnail” or low-resolution version of an image is a lesser “amount.” Such a version of an image might adequately serve educational or research purposes.
    
4. Effect of the use on the market for the copyrighted work. This is perhaps the more complicated of the factors. If your use of the work would drive consumers away from using the original work, by disparaging it or supplanting it, it’s unlikely that the use will be considered a fair one. A transformative use which alters the original to the extent that it constitutes something new and original, however, would tend to be found fair. The inclusion of high-quality, reproducible images tilts away from fair use. 
   
   “Effect” is also closely linked to “purpose.” If your purpose is research or scholarship, market effect may be difficult to prove. If your purpose is commercial, then adverse market effect may be easier to prove. Occasional quotations or photocopies may have no adverse market effects, but reproductions of entire software works and videos can make direct inroads on the potential markets for those works.

How can you tell for sure if your use of someone's work is protected as fair use?

You will never be entirely certain, but you can make a sound, good-faith decision by carefully evaluating and balancing the four factors. The following tools will help you assess the four factors: 

• The American Library Association Fair Use Evaluator
• Columbia University Libraries Fair Use Checklist

You should also save a copy of the evaluation process that documents your good-faith decision making process, this will serve as a hedge against liability. If your analysis leads you to believe your intended use falls outside the realm of Fair Use, you need to seek permission. Al ways remember, if you ask for permission and are told no you not use fair use as an argument for your use of the work.

How do you seek permission to use the work of others?

• The first step is to to identify and locate the copyright holder-- whether author, publisher, or another party.  There may be a formal process with paperwork, and there may be a fee involved. Also keep in mind that the author is seldom the holder of the copyright for a published work.
• The Columbia University Libraries Copyright Advisory Office provides detailed instructions on finding the owner and requesting permissions. This site also includes advice on crafting letters and model permission forms.
• The Copyright Clearance Center can help expedite the process, but charges a fee for their services.
• The library can also assist you in this process.

What is the publication option provided for writing my thesis or dissertation at Missouri S&T?

The publication option is available in some academic programs at Missouri S&T. The publication option is allowed when at least one or more sections of the thesis/dissertation is prepared with the objective of publication in a manner consistent with the peer-reviewed process within the discipline.

The section portion of each thesis/dissertation should include an introduction, a conclusion, and if applicable, references, which are separate from the content of the product prepared with the objective of publication. In the event that any product prepared with the objective of publication is retracted, the section portion of each thesis/dissertation should be able to stand alone as give the reader an overview of the student's research.

With the publication option you are allowed by your academic program to include:

• journal articles you have previously published
• journal articles that have been accepted (or submitted, in-press, or under review for publication
• journal articles that have other wise been presented to the public.

The publication option is problematic as it related to copyright law as you may not have the right to include an article you previously authored in your theses/dissertation. If you plan on using the publication option you should schedule a consultation with the library in order to determine your copyright status.