By Melanie Johnson and Susan Carter

As part of the submission process, many universities require theses to be uploaded into the institution’s digital repository where search engines can find them. Visibility can be crucial for new graduates seeking the next research project, presumably with better money and new opportunities. However, there are a few risks, too. Web crawlers searching the web on behalf of copyright owners hunt for embedded code or key words that can identify their works.They can then demand unpaid copyright licensing fees and penalty payments for them. This post looks at the legal issues round copyright.

Early on in the doctoral process doctoral students need to consider how they will manage the use of third party copyright material. Failure to consider copyright can result in delayed submission and key documents whose copyright belongs to someone else being removed from the published version or, in a worst case scenario, the student may face an action for breach of copyright. Melanie Johnson, a lawyer who is the University of Auckland copyright advisor, explains the most common issues relating to doctoral theses.

Generally candidates must obtain permission if they have included in their thesis copyright works belonging to others. Set out below are the various situations where permissions must be obtained (in the next post we will talk about when permission is not needed, which is pertinent to many in arts and humanities disciplines).

Authors of published work and its copyright

Many doctoral students will publish during their candidacy. On submission of the digital thesis they will need permission to use their own work if they have assigned copyright to a publisher. At some institutions, in a digital thesis a chapter or section is replaced with a link to the digital article, but often this is not the case. Usually publishers require authors to assign copyright to them when they submit an article, chapter or book for publication. Candidates who wish to include that article or chapter in their thesis, or a substantial part of it, need to obtain permission from the publisher—unless they have reserved the right to include it in their thesis at the time of signing the publisher’s contract. The Scholarly Publishing and Academic Resources Coalition (SPARC) provides useful advice for authors on how to secure their rights to reuse a work which has been accepted for publication.

Whole works

Sometimes a short extract from a larger work such as a book or a journal article is in fact a whole work and separate permission is required to reproduce that work. For example, poems, images (such as photographs), charts or diagrams are actually whole works and may have a separate copyright owner from the author of the book or journal. While it often feels as though just the usual referencing with page numbers etc. covers citation obligations, this is not the case where a substantial or a whole part of a work has been copied. If thesis writers are aware of this early on, it might influence decisions as to whether or not they include someone else’s diagram or photograph. It is also important to factor in the time required to contact the copyright owner (usually the publisher) and ask for permission to use the material before submitting the thesis. Consent is usually given when asked for, so this is not generally a problem. However, doctoral students can use this process to their advantage, demonstrating their professional researcher awareness to examiners by including this formal consent. It is a good habit to adopt.

Collaborations, especially for those in the creative disciplines

People sometimes mistakenly assume that, if they have collaborated with another person, they can freely copy the collaborative work. However, this work is jointly owned, unless each person’s contribution is a separate and distinct part. This means that copyright consent is required from collaborating colleagues. Remember, it is much easier to get clearance to use this material at the time the work is being created, rather than later trying to chase up collaborators who may have moved on or changed their contact details.

Importantly, copyright law protects not only the work of the traditional authors of literary, musical or artistic works, but also authors of works such as:

  • Computer generated literary, dramatic, musical, or artistic works—the author is the person who undertakes the arrangements necessary for the creation of the work are undertaken;
  • Sound or video recording—the author is the person who organises and makes the recording and the person who undertakes the editing or the compiling of recordings into a final output;
  • Communication works (that is, transmission of sounds, visual images, or other information made available on the internet or a broadcast or cable programme)—the author is the person who makes the communication work;
  • Performances—the authors are the actors, musicians, dancers or others who have deliberately contributed through their presence within the performance/exhibition or recording;
  • Costumes and sets—the authors are the designers, choreographers, dramaturgs or others who have deliberately contributed concepts and conceptual materials to the performance/exhibition or recording.

The list above reflects the current law in New Zealand; other countries may not provide the same protections for these works. It is well worth finding out what applies in the relevant country.

Candidates need to consider the sorts of permission required if including a video or a sound recording of a performance in their thesis. In these circumstances there may be a number of different authors who will each own copyright of different aspects of the performance and/or the recording. Setting time aside for organising the necessary consents at the time of recording is strongly recommended.

Sometimes a performance can contain separate copyright within the larger whole. In that case, copyright is infringed by a person who, without the author’s consent, makes a recording of the whole (or any substantial part of) performance and communicates that recording to the public. Posting a recording of a performance in an institutional repository without the performer’s consent is a breach of copyright.

If permission has been obtained to use a work for one purpose, separate permission will be needed to use that work for another purpose. For example, permission granted to use the work in a printed book does not cover content which is posted online.

The take-home message is that candidates need to be alert to copyright implications regarding their work from the start of the process, and if they think they will be affected, should find out from a local copyright advisor what they will need to do along the route to completion.

Next week Melanie will look at when copyright is not needed. In the meantime, we’d be interested in doctoral students’ and supervisors’ experiences of copyright.