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Copyright and Your Research
Copyright Issues for the Research Community
Copyright issues for researchers involve many different areas of concern. Permissions, fair use, publishing agreements, library copying, the use of unpublished works, and ownership are all topics of interest and in some measure controversy for researchers. Whether writing a dissertation or conducting clinical experiments, digital technology applied to information access and distribution presents the research community with new opportunities and new responsibilities that add new complexity to traditional copyright issues. Instantaneous distribution to thousands, even millions of internet users via a simple desktop computer, challenges the publishing industry and academia both to question traditional models and values in the work of the research community.
Key topics surrounding copyright in research activities:
Reproducing Published Works
Reproducing Unpublished Works
Creating Derivative Works
Publishing and Distributing
Ownership
Reproducing published copyrighted works in the course of your research is usually done for one of two reasons:
- you want a copy for your own study; or
- you want to copy something to incorporate it, or some portion of it, into some other work of your own creation, e.g., a dissertation, an article for publication, or a derivative work based on someone else's work.
Copyright law provides at least two exceptions to an owner's exclusive rights that may allow you to make use of copyrighted works in these ways without securing permission from the copyright owner.
Fair Use is the first of these exceptions and probably the most well known. It is a limitation on the exclusive rights a copyright owner enjoys that depends on the careful consideration of four factors anytime you propose using a copyrighted work without permission from the copyright owner.
Libraries enjoy statutory exceptions to copyright's exclusive rights which allow them to reproduce single works and small portions of works for their users. Section 108 (Title 17 U.S.C.) in copyright law makes it possible for libraries to support your research by providing copies of some of the materials in their collections. Increasingly, libraries license with publishers and database aggregators for electronic full-text access to academic journals and other serial publications. This can limit how materials may be used as well as how they are made accessible to you. The terms of the license will control your use even if those terms limit some use that is otherwise permitted by copyright law. It will be important to acquaint yourself with the Libraries' Licensed Electronic Resources web pages to help you understand the intersection of license agreements and copyright law.
Keep in mind at all times, when you are not certain that statutory exceptions apply to your specific situation you should either get permission, or seek the advice of counsel if you wish to proceed with a proposed use. Members of the University community may contact the Office of the General Counsel whenever they are unclear about rights and responsibilities regarding copyright.
Copying unpublished works in the course of research activities is very likely done for much the same reason that one would copy published works -- to support private study or to integrate the material into some new work. It is important to recall that copyright subsists in a work as soon as it is "fixed in a tangible medium of expression" and the fact that a work is unpublished does not mean that the work is not copyrighted. In fact, a copyright owner's right to first publication is highly regarded by courts and consequently the provisions of fair use, while not ruled out for unpublished works, may be more narrowly applied.
Historians and biographers are familiar with the more common situations surrounding the use of unpublished manuscripts, letters and diaries for example, when quoting from them or reproducing passages inside some new work, intended for publication. The court will continue to look to the four factors of fair use regarding the use of unpublished works.
In one of the few instances of court rulings on the use of unpublished works, in the case of Salinger v. Random House (1987) the court ruled against Random House in their effort to publish a biography of the author J.D. Salinger that included quotes from Salinger's unpublished letters.
Yet at least one court has found in favor or fair use for the scholarly use of unpublished work. In a more recent case, Sundeman v. The Seajay Society, Inc. (1998) a circuit court held that for the purpose of scholarly comment and criticism, unpublished material from an historical manuscript in an amount consistent with the intended purpose, and which did not affect the market for publishing the original work, was a fair use. In this instance a researcher from a non-profit foundation presented a paper at a meeting of a professional organization. Prof. Kenneth Crews provides more information about this case at the Indiana University-Purdue University Indianapolis Copyright Management Center web site.
A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a "derivative work" (Source: Title 17 U.S.C. Section 101).
Scholars and researchers frequently find themselves working in the realm of derivatives. The nature of the academy presumes that new work will be solidly based in the seminal research that lays the foundation for advancing knowledge and understanding. The right to create derivative works is one of the exclusive rights of copyright owners and any assertion that the creation of a derivative work qualifies as a fair use would rely heavily on the transformative and productive nature of the purpose of the new work.
A thorough four-factor analysis is essential to an assertion of fair use regarding derivatives. And, naturally this is an area where ethical concerns for accurate and appropriate attribution also come into play as plagiarism issues arise along side copyright responsibilities.
Publishing original research or other academic work is at the core of an emerging debate within the scholarly communications community. Publishers naturally want to protect investments and value for the materials they distribute. Scholars and other members of the academic community want to assure that they and their colleagues will have unfettered access to their works along with the freedom to integrate their works into any of their academic activities, including teaching. Publication agreements have tended to wrest control of copyrighted work from authors and creators by requiring the transfer or assignment of copyright from the author to the publisher. The movement away from this traditional arrangement is gaining impetus as technology presents academic authors with new opportunities for control and use of their original works. Posting articles on personal web sites or pre-print servers are easy ways for scholars to share ideas without reliance on the traditional publishing model.
However, academic publishers often are not interested in publishing work that has already reached the market. Scholars and researchers who choose to expose their work to their colleagues, who comprise the basic market for the published version of the work, should do so cautiously whenever publication remains a goal for the work.
Another consideration for researchers will be the extent to which their work might be useful in teaching. Publishing agreements that transfer copyright to the publisher can limit options for using or distributing the work to only those uses which might be allowable as a fair use. That is, if your use of the work in any teaching setting doesn't qualify as a fair use, you will need permission from your publisher to distribute your own work.
Publishing agreements are negotiable and publishers are increasingly aware of a need to provide the academic community a measure of freedom to make non-commercial uses of the works created through scholarship and research. Journal publishers have default policies regarding author rights. The SHERPA Project in the U.K. maintains a searchable database of publisher copyright policies that provides a summary of permissions requirements and copyright transfer agreements from more than 100 academic publishers throughout the world.
Closer to home the Scholarly Publishing and Academic Resources Coalition (SPARC) monitors the intersection of technology, publishing, and copyright law with a balanced consideration of issues for scholars and publishers alike. Copyright Resources for Authors maintained at the SPARC web site highlights key issues for retaining rights in publishing agreements.
Owning the output, the work product, of your research at the University is controlled by a combination of university policy and copyright law. Essentially, the law establishes the copyright in eligible works at the time they are "fixed in a tangible medium of expression" and the applicable policy at the University, the Regents Policy on Intellectual Property clarifies ownership of the rights and distribution of revenue or other benefits derived from the creation of the work
Key to working with the Regents policy is the clear understanding of the distinction made between "regular academic work products" and "specially commissioned work". This distinction controls ownership. When work is considered to be a "regular academic work product" the creator(s) will own the rights to the work. On the other hand, when work is considered to be, "specially commissioned" the University will own the rights to the work. The distinction between these two is drawn in Section III of the policy as:
- Regular Academic Work Product "Regular Academic Work Product" means any
copyrightable work product which is an artistic creation or which constitutes,
or is intended to disseminate the results of, academic research or scholarly
study. Regular academic work product includes, but is not limited to, books,
class notes, theses and dissertations, course materials designed for the web,
distance education and other technology-oriented educational materials, articles,
poems, musical works, dramatic works, pantomimes and choreographic works,
pictorial, graphic and sculptural works, or other works of artistic imagination.
Software specifically needed to support a regular academic work product or
which is designed to disseminate the results of academic research and scholarly
study is also considered a regular academic work product.
- Specially Commissioned Work. "Specially Commissioned Work" means a work specially ordered or commissioned and which the University and creator expressly agree in a written instrument signed by them shall be considered as such.
Other clarifications to look for in the Regents Policy on Intellectual Property include:
- Rights to publish. Generally nothing affects the rights of a creator to publish but in the case of property disclosed to the University the University may request a delay in order to secure appropriate protections.
- Distribution of income derived from disclosed intellectual property that is licensed or otherwise transferred by the University's technology transfer unit. Generally this distribution provides 1/3 of any revenue to the creator, 1/3 to the Office of the Vice President for Research, 8% to the creator's college or school that supported the research, and 25-1/3% to the department which supported the creation of the work.
- Use of teaching materials.
- Your responsibilities -- when is disclosure necessary and cooperation with the University in securing appropriate protections, e.g., copyright, patent, etc.
Further considerations for owning your copyright are covered in the Copyright Basics and Owning Your Copyright pages on this web site.