Using and copying copyrighted works in research involves many copyright-related issues. Any time your research or writing activities involve making, distributing, or publicly displaying or performing a work, or involve making a new work that is derivative from an existing one, your activities are overlapping with the exclusive rights that copyright owners control. You may still be permitted to do these things, but a smart scholar will be aware of their own rights and responsibilities under copyright.
Some Common Issues
The fact that a work is unpublished doesn't mean the work is not protected by copyright . In fact, fair use may apply more narrowly to the use of unpublished materials.
Historians and biographers are familiar with common situations concerning quoting or reproducing portions of unpublished manuscripts, letters, and diaries inside some new work intended for publication. Courts continue to look to the four factors of fair use regarding unpublished works.
In Salinger v. Random House (1987) the court ruled against Random House in their effort to make fair use of quotes from unpublished letters of the author J.D. Salinger.
More recently, in Sundeman v. The Seajy Society, Inc (1998) a circuit court ruled in favor of fair use when it found that a researcher from a non-profit foundation did not infringe by quoting from an unpublished literary manuscript in a paper presented at a meeting of a professional society. The court found this use to be consistent with statutory favored uses: comment and criticism.
Researchers most often want to copy copyrighted works for private study, or to incorporate a work, or portion of a work, into a new work, e.g. a dissertation, an article for publication, or a derivative work based on another person's work. There are at least two exceptions to an owner's exclusive rights that allow researchers to use copyrighted works without permission from the copyright owner.
Fair Use is the first of these exceptions and probably most well known. The second exception applies to libraries and gives them to ability 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 research by providing copies of some of the materials in their collections.
Libraries frequently make agreements with publishers and database aggregators to license access to electronic full-texts of academic journals and other resources for their campus communities. These licenses can limit how materials may be used as well as how they are made accessible to you.
The terms of a license control your use even when those terms limit some use that is otherwise permitted by copyright law. It's important to acquaint yourself with the Libraries' Licensed Electronic Resources web pages to understand the intersection of license agreements and copyright law.
When you're not certain that statutory exceptions apply to your specific situation you should either get permission, or seek the advice of counsel if you want to proceed with a proposed use.
Getting permissions can be complex and sometimes it's difficult to track down a copyright owner. The Copyright Permissions Center (CPC) on campus can help. CPC can provide research assistance in tracking down copyright owners and will secure permission arrangements for your use. Members of the University community may contact the Office of the General Counsel whenever they are unclear about rights and responsibilities regarding copyright.
Creating Derivative Works
A derivative work is a work based upon one or more preexisting works. Translations, musical arrangements, dramatizations, fictionalizations, are each examples of derivative works. In short, any other form in which an original work may be recast, transformed, or adapted can be considered a derivative work.. 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.