Important - As a graduate student, you need an understanding of the elements of copyright law prior to beginning your thesis or dissertation. Why?
This is probably your first publication, and copyright poses questions for you both as a creator and a user of resources. Understanding the basics will save you time and trouble down the road, and will be invaluable for effectively engaging in an information-rich environment. It will aid you in your research, and help you to begin thinking about the academic publishing landscape, your own intellectual property, and how to best facilitate sharing your own work.
As scholars, we require and even come to expect access to the work of others, while as authors we may reflexively gravitate toward restrictive copyright policies, and this is a paradox that merits consideration. This page is intended as an outline of key concepts and a resource guide towards a fuller understanding of your rights, responsibilities and opportunities. For a truly comprehensive guide to copyright issues for graduate students see Kenneth D. Crews, Copyright and Your Dissertation or Thesis: Ownership, Fair Use, and Your Rights and Responsibilities.
What is copyright and why do I need to know anyway?
The copyright clause in the U.S. Constitution, based on the British Statute of Anne of 1710, is intended "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 break it down:
- “exclusive right”: This language conveys the intention of the law to motivate authors and creators by allowing a period of time during which they can profit from their work-- a kind of temporary monopoly.
- On the other end of the balance scale, the phrase "limited Times" acknowledges the social value and necessity for public accessibility of those works. This aspect is indispensable to scholars, whose core mission concerns the creation and distribution of knowledge, and 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. The simple act of writing your ideas down is enough to invoke the protection of copyright. Copyright applies to original, creative work rather than facts, ideas or concepts.
Copyright is a bundle of rights described in section 106 of U.S. copyright law. The most relevant include the granting of exclusive rights to the copyright holder to:
- reproduce the work (make copies)
- create derivative works (e.g., remixes, translations, adaptations, sequels etc.)
- control its distribution
- public performance or display of the work
Do I need to register my thesis to have copyright?
No. Your thesis or dissertation is afforded copyright from the moment of its creation; there is no need to formally register your work. The benefit of registering the copyright of your thesis or dissertation, in the event your copyright is infringed, is that you will be able to sue for punitive damages as well as actual damages; if you do not register your copyright you can collect only actual damages. For more information about the process of registering, see Chapter V, page 15, of the Graduate School Style Manual (Adobe PDF).
When do I need to seek permission to use the work of others?
If you want to include the work of others, in the form of reproduced images or charts, music, long quotations, standard tests or computer software etc., you will need to evaluate whether simple attribution is sufficient, or if your intended use requires you to seek permission of the copyright holder. Understand that crediting the source does not eliminate the obligation to seek permission. Sources must always be credited to avoid plagiarism.
You do not need to seek permission if:
- The work is in the public domain. Public domain works include those written before 1923, and some authored afterwards. Determining the copyright status can be very tricky. Fortunately, you can use this regularly updated chart of U.S. Copyright Terms and the Public Domain by Stanford’s Peter Hirtle.
- The material in question is openly licensed, such as under a Creative Commons license, or the author has otherwise explicitly granted permission; look for the CC symbol displayed on the work. Many sites and blogs are licensed this way. Investigate open access journals for research in your discipline.
- You follow fair use guidelines.
What is fair use and why is it important for me?
Just as copyholders are granted rights, users are also granted rights in the form of fair use. In the interests of a free and open society that fosters creative work and supports research, there are limitations on the exclusive rights of copyright holders, which are described in sections 107-121 of the Copyright Act. Among them is the doctrine of Fair Use, which stipulates that, for 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 this somewhat complicated doctrine.
Four Factor Test of Fair Use
- Purpose and character of the use. Educational or non-profit use tends to be favored over commercial use. While your use of the material may be considered fair in the context of your dissertation, if you decide to publish it later, this may alter the balance, and you may need to seek permission.
- Nature of the copyrighted work. Creative, imaginative works are afforded the greatest protection, while facts, data, ideas and U.S. government work are considered part of the public domain. Interestingly, while your grocery list is granted copyright, a mathematical formula is not. Use of unpublished material is less likely to be considered fair use.
- Amount and substantiality relative to the size of the copyrighted work as a whole. 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.
- Effect of the use on the market for the copyrighted work. 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.
How can I tell for sure if my use of someone’s work is protected as fair use?
You cannot be entirely certain, but you can make a sound, good-faith decision with respect to a balance of the four factors. The following tools will help you assess the four factors with confidence on a case-by-case basis:
- The American Library Association Fair Use Evaluator
- Columbia University Libraries Fair Use Checklist
These resources will help you to understand how you can make the best use of the the copyrighted work in question. Also, you should save a copy of the evaluation process that documents your good-faith decision making process, which 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.
How do I seek permission to use the work of others?
- You will need to identify and locate the copyright holder-- whether author, publisher, or other party, such as an heir. There may be a formal process with paperwork, and there may be a fee involved.
- Detailed instructions for the process of finding the owner and requesting permissions can be found on the Columbia University Libraries Copyright Advisory Office site. The site includes advice on crafting letters and model permission forms.
- A permissions agency such as the Copyright Clearance Center can expedite the process for a fee.