Briefing on ETD Copyright Issues and Fair Use

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Contents

About this Document

This document will provide clarifying information concerning the poorly understood and often hotly contested issues of copyright and fair use in ETDs. There is so much uncertainty and fear over this issue that it has in some cases prevented campuses from implementing ETD programs at all. This briefing will be developed in close reference with the embargo briefing, as the issues are often linked. Both briefings will address publisher concerns and issues squarely. Again, the point of this briefing is to provide a concise summary of the relevant information for stakeholders, with documented citations.

A final working outline for this Guidance document is available to all project steering committee authors for review and comment at Google Docs.

Introduction

As exemplars of excellence in student research and writing, ETDs mark important contributions to the scholarly record. Institutions with ETD services can make broadly available intellectual content that otherwise would remain inside bound volumes, effectively tucked away, on the shelves of an academic department office or in the stacks of a university library. ETDs benefit not only the research community at large but also the students who produce them: through the experience of writing and submitting ETDs, students arguably attain the status of published author.

Because ETDs capture the research efforts of students, many of whom will go on to pursue careers in which research publications play a role in professional advancement, universities and colleges have a responsibility to provide the best possible guidance on students’ intellectual property rights - in particular, copyright and fair use. To do this, all parties involved in providing, supporting, and managing an ETD service should be apprised of the range of issues represented by copyright and fair use practices. For example, an institution’s research policies and guidelines can impact how advisement on copyright and fair use is handled. Campus entities - such as the graduate school, the departments and programs it supports, the library, and the research administration office (e.g., the Office of the Vice-President for Research) - have their own stake in an ETD service, whether that stake is preservation of, and continuing access to, the scholarly record; or ensuring copyright protection for research results shared in an ETD; or conducting workshops on ETD copyright and fair use as part of outreach to students and even faculty.

Copyright and the related issue of fair use - the subjects covered by this briefing document - are hotly contested topics in scholarly publishing, making proper guidance about them even more crucial. This document is intended to lay a foundation for understanding the basics of copyright and fair use when administering an ETD service. It will have some overlap with the Briefing Document on Access Levels and Embargoes of ETDs. It will also reference the Metadata for Lifecycle Management of ETDs document and the Guidelines for Implementing ETD Programs - Roles and Responsibilities.

Overview of ETD copyright and fair use

  • Meaning and implications of copyright.
    • Copyright protects “original works of authorship,” whether published, or unpublished. When a work is copyrighted, it is illegal to reproduce that work without permission of the copyright holder. Nor may the work be sold, or – in the case of a work in the fine arts and the performing arts – displayed or performed in public without permissions clearance. Copyright also prohibits public performance of a sound recording via “digital audio transmission” (“Copyright Basics,” http://www.copyright.gov/circs/circ01.pdf).
    • Categories of copyrighted-protected works: literary works; musical works; dramatic works; pantomimes and works of choreography; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works.
    • Examples of categories for what is not copyright-protected:
      • Works that don’t take a tangible form of expression (e.g., choreographic works that haven’t been notated or documented, or improvisational performances that went unrecorded or undocumented)
      • Titles, names, short phrases, and slogans; well-known symbols and designs; variations on typographic ornamentation; simple listing of contents or ingredients
      • Ideas, methods, processes, concepts, systems, and processes - as opposed to a description, explanation, illustration
      • Works embodying information that is common property and having no original authorship (e.g., height and weight charts, standard calendars)
    • What role does international copyright play in the context of ETDs?
      • Parsing the similarities and differences between U.S. and international copyright in context of ETDs provides more grounding in overall topic
      • Address international students as ETD authors - same author rights apply, because ETDs here are affected by U.S. copyright law
  • Explanation of fair use (key to give nature and scope of fair use, referencing ARL’s Code of Best Practices for Faire Use report, particularly the 6th principle in report) - “Fair use is a user’s right”; it prevents copyright law from transgressing First Amendment rights, thereby offering a balance and flexibility to ensure continuation of expression unconstrained.
    • In the UK, “fair use” is known as “fair dealing”
      • Fair dealing can be claimed in cases of “Research and Private Study” (not including recordings of sound and film) and of “Criticism/Review and News/Reporting”
      • Origin of work must be given in claims of fair dealing
      • http://www.jisclegal.ac.uk/LegalAreas/CopyrightIPR.aspx

Who provides guidance, for whom, and why?

  • Who are the parties on campus needing to work together on guidelines for ETD copyright and fair use? (The role of each campus entity listed below will also be defined, in the context of developing copyright guidance.)
  • (Refer/Link to Lucy’s document)
    • Graduate School
    • Undergraduate program (e.g., College of Liberal Arts & Sciences)
    • University/College Library
    • University Counsel or General Counsel
    • Research administration
    • Faculty administration
  • Who is the audience for such guidance?
    • Internal audience
      • Students writing ETDs
        • But don’t discount targeting all students, well before ETD-writing stage, since understanding copyright and fair use practices serves them well before they begin research and writing for their ETDs
      • Faculty advising students writing ETDs
        • Can have bearing not only on how faculty advise ETD-writing students but also their publication-worthy scholarship overall
        • Also, this is an opportunity to inform faculty about collaborative authorship situations (when co-authoring with student) and being clear on who holds copyright and who can transfer copyright
      • Liaison librarians helping students in their research (e.g., proper guidance issues of fair use when using copyrighted materials, open-access issues, author rights)
      • ETD repository manager and/or scholarly communications librarian (depends on who oversees this type of scholarly content in the library)
    • External audience
      • Other institutions interested in starting up an ETD program - even institutions expanding already existing ones
      • Scholarly publishers, which often publish from, or publish revised versions of, ETDs - particularly dissertations
        • A publisher may want to know what the copyright and fair use policies and practices are at the institution where the dissertation was submitted
  • Why should ETD programs provide guidance on copyright and fair use?
    • Introduces students to notion of themselves as authors, which is empowering
      • Authors have rights
      • Authors can/should negotiate
      • Gives students experience with licenses, agreements, and permission requests, preparing them for experience of authorship
    • Broadens awareness of open access and sharing of research
    • Potentially reduces odds for copyright infringement, liability
    • Educates the next generation of faculty
    • Dispels myths & misunderstandings about scholarly publishing and ETDs
    • Presents opportunity for outreach to, and education of, current faculty and research administrators
  • What education strategies should institutions undertake in order to disseminate information on copyright and fair use in an ETD context?

The context of an institution’s research administration policies and guidelines for intellectual property rights

  • What understanding or agreement is in place at your institution? What rights does the university/college exert on student work? When does research belong to the university, and when does it not?
    • For example, patent and trademark agreements
    • Examples of such guidelines from various institutions
      • Penn State - Faculty Guidance on Student IP Rights; Special Student Intellectual Property Agreement Forms
  • Will ETD, as a type of student work, incorporate sponsored research?
    • If so, is there differentiation between graduate- and undergraduate-level research?
    • What are student’s (researcher’s) rights in this context?
    • Obligation to sign University Intellectual Property (IP) agreement?
  • How else do these IP agreements relate to ETD copyright/fair use?
    • Access restrictions/embargoes (link to Geneva’s document)
    • Funding agency that sponsors research may mandate that data generated on a project be shared.
      • Is there an institutional policy or stance on research data?
      • How might this situation impact an ETD based, partially or wholly, on sponsored research? On ETDs that incorporate data sets generated as part of sponsored research projects?
      • Whom to consult?
        • University counsel / General counsel at institution
        • Office of the VP for Research (also a role for producing guidance)
        • Graduate School
        • Faculty administration
        • University/college library (largely for outreach/awareness, to advise properly)
  • Also, plagiarism and intellectual property rights
    • Important part of responsible conduct of research not to plagiarize
    • Guidance for students (point to your institution’s policies and guidelines, penalties)
    • Guidance for faculty (i.e., responsible review of ETDs)
    • Tools for detecting plagiarism that ETD programs can use
  • What protections are in place for students and universities in the event of lawsuits claiming copyright infringement or rejection/violation of fair use?
    • This information may be offered in research policies and guidelines for the institution
    • (may suffice to do a cursory scan of institutional policies and report on results in this part)

Copyright and fair use in the retrospective scanning of theses and dissertations

  • Cf. Clement’s and Levine’s article about pre-1978 dissertations ("Copyright and Publication Status of Pre-1978 Dissertations: A Content Analysis Approach," in portal)
    • Because of their deposit to university libraries, or by broad availability via microfilming, pre-1978 dissertations are viewed as “published for copyright purposes.”
    • Some pre-1978 dissertations may have fallen out of copyright
      • “Specifically, if the copyright holder did not renew the original 28-year copyright term for a second term of the same duration, the work lost its copyright protection. This fact does not apply exclusively to dissertations but to all published works copyrighted between 1909 and 1978.” (826)
    • Implications are that collection managers will have to investigate copyright issues when doing retrospective digitization of pre-1978 dissertations.

Distribution of ETDs via an institutional repository

  • Rights of the repository to ETD content?
  • Policy statements for copyright and fair use
  • Expressing rights statement / policy via metadata for ETDs
    • Examples of how this is done (Refer/link to Daniel’s metadata document)
  • Role of distribution licenses (signed permission from ETD author for repository to make the ETD available)
    • Opportunity for institution to apply Creative Commons licensing
    • Examples of license (copyright statement) for student to fill out and sign
      • Boston College
      • Indiana State
    • Obligation to spell out as explicitly as possible the implications of such a license
      • This includes presenting scenarios of discovery - i.e., ETDs turning up in Google searches and other types of third-party discovery and access, with student not at all aware that this can happen
    • Mandatory, or not?
      • Most institutions require that students sign a license agreement granting certain rights to the institutional repository/library
    • For dissemination, preservation, or access?
      • While students own copyright to their theses and dissertations, they are advised that by submitting their ETDs to a repository, for example, they are granting a library the right to preserve, and provide ongoing access to, their ETDs.
      • Dissemination argument is equally important to make
        • What measures is IR taking to increase SEO of ETDS, especially via metadata approaches? (Possibly refer/link to Daniel’s metadata document)
    • Option to implement a “take down” (cease and desist) policy
      • Author’s perspective (author doesn’t want public access to her ETD)
      • “Failure” of fair use (holder of copyrighted material in ETD wants ETD taken down)
      • (would be helpful to survey how many institutions have a “take down” policy)
  • Author rights (Section 106),
    • Author agreements (significance of these, examples of them, how experience with them now is good preparation for future scholarly publishing)
    • This topic applies to Section V as well (below)
      • Access (refer to briefing on access levels and embargoes in ETDs)
      • Scenarios of research use of ETDs that have been collected in IRs
    • Text mining of ETDs
      • This is following on pieces in Nature about researchers requesting permission from publishers like Elsevier to text-mine journals
      • Quite possible that researchers might want to do same with ETDs, particularly ETD collections that are quite large as the result of a long-standing service, perhaps for tracking the history/development of a particular research topic/question
      • How should institutions respond? What are institution’s rights in satisfying text-mining requests?
      • What is the library’s role in providing assistance toward text-mining?
      • What author rights apply in this situation?

ETDs and commercial publishers (including e-book publishers and vendors like ProQuest)

  • Determining fair use (on use of copyrighted material)
  • Does institution have a policy on appropriate use of copyrighted material (such as quotations and illustrations) in scholarship generated by faculty and students?
    • In the absence of one, then advice on use of copyrighted material in an ETD may need to be treated on case-by-case.
    • Fair use checklists and other resources
  • How to secure permission to use copyrighted material
    • From graduate school/library perspective (instructional, guidance)
    • Student perspective
    • Examples of letters/forms requesting permission
  • What are the rights of commercial publishers to ETD content?
    • Author perspective
      • Understanding copyright transfer issues
      • Reiterate author rights and author agreements
    • Graduate school and library perspective
  • ProQuest and ETD copyright and fair use
    • Options for licenses (e.g., Creative Commons?)
  • Prior publication issues - how to treat previously published material by ETD author that appears in ETD
    • E.g., a chapter that appeared as an article prior to ETD submission
  • Do ETDs affect their future publishing potential in scholarly journals or as monographs?
    • Issue especially ripe for outreach/education to variety of campus sectors, especially faculty and students
  • What about E-book publishers and ETDs (largely anecdotal, but there have been some posts to Twitter about people finding their dissertations as an e-book, taking them completely by surprise)
    • See "Dissertation for Sale" ([1]) in the Chronicle
    • Need to prepare students to anticipate this possibility
    • Guide students in how to respond to such situations
    • What are rights of students as authors in this context?
    • What are rights of institution in this context?
    • Are there any models emerging for dealing with this?

Summary/Final Take-Aways (still in progress)

  • There are opportunity costs if key issues in copyright and fair use are not presented as thoroughly as possible for all stakeholders involved in an ETD service. Among these costs:
    • Disservice to students if we don’t give the them the tools they need to make informed decisions about copyright, fair use, and their author rights
    • Disservice to institution, possibly inviting threats of liability
    • Cost in not coordinating efforts and thus displaying a more centralized, possibly unified front on copyright and fair use understanding and practices

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