Author: Rachael Samberg

This post was originally published on the University of California Scholarly Communication Blog.

CELEBRATION, BFICK, CC BY 2.0

You’ve worked painstakingly for years (we won’t let on how many) on your magnum opus: your dissertation—the scholarly key to completing your graduate degree, securing a possible first book deal, and making inroads toward faculty status somewhere. Then, as you are about to submit your pièce de résistance through ProQuest’s online administration system, you are confronted with the realization that—for students at many institutions—your dissertation is about to be made available open access online to readers all over the world (hurrah! and gulp).

Because your dissertation will be openly available online, there are many questions you need to address—both about what you put in your dissertation, and the choices you’ll need to make as you put it online. If you are a first-time author, facing these concerns can be daunting to say the least. And you definitely don’t want to be thinking about them for the first time when you are scrambling to submit your dissertation to ProQuest.

For instance, you’ll need to consider:

• Are you using materials created by other people in your dissertation? Perhaps you’re using photos, text excerpts, scientific drawings or diagrams? You might need the authors’ permission to include them.
• Are you using materials from a library’s special collections or archives? You may have signed agreements or accepted terms of use that affect what you can publish from those materials. (Examples: Archive.org, Harvard’s Houghton Library, Smithsonian, and Niels Bohr Library & Archives.)
• Are you including information about particular living individuals? You might need to consider their privacy rights (see, for instance, a discussion on p. 15 of a University of Michigan dissertation guide).
• If you own copyright in your dissertation (as most grad students in the UC campus system do), should you register your copyright?
• Do you need to embargo your dissertation for privacy, patent, or other concerns?
• Should you license your dissertation for greater use by others?

At UC Berkeley, we’ve created a workflow and guide for you to tackle these kinds of important copyright and other legal questions. Below, I’ve included highlights from the workflow, but there are plenty more best practices to draw upon in the guide. What follows are, of course, exactly that: best practices, and not legal advice. Your local scholarly communication officer or librarian (see this list for some resources around UC) can help you find additional information as you consider these issues for your own dissertation.

Copyright Basics First

Before using the workflow, it can be helpful first to understand what copyright is—and is not. In short, copyright means that authors get exclusive publishing, reproduction, and other rights over their original works of expression for limited periods of time.

What this means for your dissertation is: If you’re including someone else’s work that’s “in copyright,” meaning protectable by copyright law and still within that limited time period (usually at least an author’s life + 70 years in the U.S), then you need to think about whether you need the author’s permission to include that work. You don’t need permission if your use would be “fair” under the law. Don’t worry, our guide helps address what’s considered fair use, as well as what’s eligible for copyright protection to begin with.

Okay, on to the workflow. Remember, you’ll need to ask these questions for every work you include that was created by someone else. And, keep in mind that addressing these questions takes time.

The Workflow

Step 1: Do you need permission first to include someone else’s work online?

You don’t need the copyright holder’s permission to include an excerpt / photo / diagram / whatever-you’re-using if any one of the following is true:

1. The copyright holder has already granted a license for you to include their work. Sometimes, authors have already provided permission through grants such as Creative Commons licenses. For instance, this is a photo of people talking over ice cream that I took and that you can use for any purposes as long as you attribute me as the author (i.e. I’ve applied a Creative Commons Attribution, or CC-BY license, to it).

2. The work is in the public domain. Public domain works are open for use with no permission needed. Just because a work is online does not mean it’s in the public domain. Rather, public domain refers to works for which copyright protections have expired, or works that were ineligible for protection in the first place (facts, ideas, federal government materials, etc.).

3. Publishing the content would be fair use. Fair use—which is meant to encourage teaching, research, scholarship, criticism, and parody—allows you to exercise the otherwise-exclusive rights of the copyright holder (distribution, creating adaptations, etc.) without having to seek the copyright holder’s permission. For a use to be fair, though, you have to consider four factors that collectively weigh in favor of “fair use.” Records of your fair use analysis—which you can create by filling out a checklist—can be very helpful to have on hand if there are ever questions about your reasoning or use.

Remember: Attribution is not the same as permission! Even if you cite your sources (which, of course, you will!), this doesn’t mean you have permission to include the excerpts from them in the first place. And, if you’re linking to an authorized (e.g. not illegally-posted) source, it’s always fine (at least in the U.S.!) to link to the content online rather than including the item itself.

Step 2: If the copyright holder’s permission is needed, how do you get it?

If you couldn’t answer “yes” to anything in Step 1, you’ll need to seek the copyright holder’s permission to include the work or excerpt in your dissertation. Obtaining permission can take a long time, so plan in advance. You’ll need to research and locate the copyright holder and then ask, in writing, for permission covering all your intended uses. Here are some useful sample permission request letters:

• University of Texas Libraries: Template letter for requesting permission
• George Washington University Library: Sample permission letter
• UCLA Library: Sample permission letter

Remember: A copyright holder’s silence is not permission. If you do not hear back in response to your request, you are now faced with a question of risk assessment, and whether to keep seeking permission or embrace the likelihood (or not) of the rights holder challenging your use down the road. In some of these situations, you may ultimately decide to limit your use further, or use a different work entirely—but you’ll need to make a decision one way or the other.

Step 3: What about other non-copyright legal or policy concerns?

Human subject research methodology, issues of indigenous knowledge, and other ethical concerns are best discussed with your dissertation advisors and institutional review boards. But the workflow does address a few other legal questions that at first might seem like copyright questions, yet actually pertain to different legal doctrines.

For instance, while copyright protects copyright holders’ property rights in their works, privacy law protects the interests of people who are the subjects of those works. Privacy rights in scholarship most often arise if you are seeking to use third party content like correspondence, diaries, and images that contain personal information about or pictures of particular people. But, they expire at death—meaning, you can’t be liable for disclosing private facts about a person no longer living. There are typically two additional important defenses to claims for invasion of privacy: newsworthiness and permission. If the material you wish to include reveals private facts that are of public interest or concern (which your dissertation scholarship may be) or if the person who is the subject of the information has given you permission to include it (which you may have obtained), then an invasion of privacy claim should not be sustainable.

Another non-copyright legal issue that often comes up in the context of dissertations is contract law (see p. 185 of Peter Hirtle’s excellent book on digitization). If you are using materials from archives, museums, library special collections, you may need to consider website terms of use agreements or contracts you signed (or clicked through online) with the archival institution. This is because, irrespective of whether the materials are protected by copyright, you may have entered into an agreement dictating whether or not you can include material from the works. Read carefully any agreement or website terms of use that you are asked to agree to. Inquire with the library or archives directly about whether a waiver is possible if you need one, or seek additional information from them about securing the right to publish.

Step 4: Address publication issues.

If you are a UC graduate student, your dissertation will be made available through ProQuest and/or published open access online in eScholarship. There are some issues to consider before clicking “submit”:

• Should you register your copyright with the U.S. Copyright Office? As a UC student, in most cases, you automatically own the copyright in your dissertation. However, registering copyright in your dissertation offers certain distinct advantages: It provides public record that you are indeed the author and owner, and also enables greater enforcement of your rights against infringers or plagiarists.
• Should you embargo your dissertation? Making your work available to be read online immediately has many advantages. Not only does it establish when your work was created and published (which can help combat plagiarism), but also it can help build your academic reputation. There are circumstances, however, that would warrant an embargo—such as situations where there would be disclosure of patentable rights or there are ethical concerns, or a book/journal publisher has demanded it (which is rare). You should consult guidance from your institution about when embargos are recommended or approved. For instance, here are UC Berkeley’s guidelines on embargoes.
• Do you want to license your work beyond fair use? As with any other copyrighted work, other scholars can make fair use of your dissertation in their own research. You can also decide to license your work beyond what fair use allows by applying a Creative Commons license to it. This should be a careful decision, which you discuss fully with your dissertation advisors and journal or monograph publishers in your field. There may be discipline-specific reasons to decide to—or not to—license your work, so examine them closely.

Once you get into the groove of answering these workflow questions, you’ll become a pro at addressing copyright and other policy issues in all of your subsequent scholarship, too. Perhaps the two most important points to keep in mind are:

• Start early, since this workflow can take some time, and
• Contact the librarian or scholarly communication officer on your campus who can help walk you through all this. For UC Berkeley researchers, I’m here for you!

Good luck, and keep writing!

P.S. Want more beyond our guide? There are several other excellent online resources about electronic dissertations to check out:

• Kenneth D. Crews, Copyright and Your Dissertation or Thesis: Ownership, Fair Use, and Your Rights and Responsibilities
• University of Michigan’s Copyright for Dissertations: Getting Started
• University of Michigan’s A Graduate Student’s Guide to Copyright: Open Access, Fair Use, and Permissions
• Hillary Corbett, ETDs and the Consequences of Openness
• Ohio State’s Copyright in Your Thesis or Dissertation