By Melanie Johnson and Susan Carter
Our previous post looked at when copyright consent is required once a thesis is posted into a digital portal, and how to obtain permissions. This post explains the situations when copyright permission is not needed.
The law will vary from country to country. For example, in the United States all works created by the Government are free from copyright, whereas in New Zealand, government work is protected by Crown Copyright for 100 years from the date of publication.
Most universities have someone whose responsibility includes advising on copyright, so if doctoral candidates have a specific query, they should check with that person to find out what their national law requires.
In broad terms, in the following circumstances permission is not needed.
Copyright has expired
Works in which copyright has expired may be copied in full and dealt with freely. In New Zealand, copyright in literary, dramatic, musical or artistic works expires 50 years from the end of the year in which the author died; in Australia, the US and Europe and many other countries, copyright expires 70 years following the end of the year in which the author died.
In New Zealand, copyright in sound recordings, films and communication works expires 50 years from the end of the calendar year in which the work is made or communicated or made available to the public. If the identity of the author is not able to be ascertained by reasonable inquiry, copyright expires 50 years from the end of the calendar year in which the work is first made available to the public. Overseas, the term of copyright for these works varies with each jurisdiction and national law must be checked.
A less obvious protection exists for the typographical arrangement of a work. This means that a work in which the author has been dead for hundreds of years can be protected by copyright if the publisher brings out a new edition, whereupon the typographical arrangement is protected for a further 25 years.
Quoting from a work in which only the typographical arrangement is protected by copyright and not copying the format or layout means that you can use that work in that way without permission.
Creative Commons licences
Works on the Internet may be made available under a licence such as a Creative Commons (CC) licence which would allow you to include it in your thesis and post it on-line without having to request permission.
Creative Commons licences allow creators (licensors) to retain copyright while allowing others to copy, distribute, and make some uses of their work. All work licensed under a CC licence must be properly attributed to the licensor.
Creative Commons offers 6 main licence types. Providing that the licence permits the original work to be copied and distributed online, it may be included in a thesis. The following link is to a Quick Reference Guide to Finding Creative Commons Material for Teachers and Students.
Although NZ Government works are protected by copyright the government has issued a directive to the effect that works subject to Crown Copyright should be made available under a creative commons licence.
If you are wanting to use work, including data sets, which are protected by NZ Crown copyright, then this link provides useful information on using NZ government works and how to obtain permission: http://ict.govt.nz/guidance-and-resources/open-government/new-zealand-government-open-access-and-licensing-nzgoal-framework/quick-guide-users/ Other countries are likely to also have government guidance, and someone at your own institution may help you find where.
Copying which is “fair”
There are certain exceptions in each country’s copyright laws which allow copies to be made for purposes which are thought to benefit society and for which the copyright owner would be unlikely to grant permission. This is generally classed as “fair” and may fall under “fair use” if you are in the US or “fair dealing” if you are in New Zealand, Australia or the UK. In New Zealand the “fair dealing for criticism and review” allows copying for criticism or review purposes. Any use of works under this provision requires that the original author is acknowledged with the usual reference needed for thesis citations.
In some jurisdictions, no copyright attaches to certain works in the public domain. Under the New Zealand Copyright Act no copyright attaches to the following works which may be freely copied:
- Bills and Acts of Parliament
- Regulations and Bylaws
- Reports of Select Committees
- New Zealand Parliamentary Debates
- Judgments of any New Zealand court or tribunal. Note: Head notes are protected by copyright and may not be copied without permission
- Reports of New Zealand Royal Commissions, Commissions of Inquiry, Ministerial Inquiries or Statutory Inquiries
In the US, any work created by a federal (but not state or local) government employee is in the public domain, provided that the work was created in that person’s official capacity. However, state and local laws and court decisions are in the public domain. See more at: http://fairuse.stanford.edu/overview/public-domain/welcome/#us_government_works.
In general, those working with historical documents will need to ascertain early on whether these works are likely to be protected by copyright and whether or not permission is required.
A final group of works are protected by copyright, but can be freely copied, including for commercial purposes. In New Zealand this includes:
- abstracts of scientific or technical articles accompanying an article in a periodical indicating the contents of the article;
- buildings and sculptures permanently on public display may be drawn, photographed or filmed – this does not extend to copying someone else’s graphic image, photograph or film of a sculpture or building on public display. As explained in the previous post [include link],s a separate copyright exists for the graphic image, the photograph or film itself, which belongs to the artist, photographer or filmmaker;
- text or images relating to a medicine imported by the Crown and published overseas by the copyright owner.
Commissioned works include photographs, computer programmes, paintings, drawings, diagrams, maps, charts, plans, engravings, models, sculptures, films or sound recordings. Ownership of a commissioned work varies from jurisdiction to jurisdiction. In Australia, if someone is paid to create a work for private or domestic purposes, the person paying for it owns the copyright
The general principle, as well as the exceptions, can be modified by agreement. It is good practice to have written agreements with all the contributors involved in your publication project to ensure copyright ownership is clearly determined early in the process.
Under current New Zealand law, the commissioner retains copyright whether or not it is for private or domestic purposes. However, the commissioner can contract out of the default position. So, unless there is an agreement to the contrary, the owner of the commissioned work also owns the copyright, which means they can use the work as they please. In the rare case when doctoral students commission someone to create a work, candidates must check any written agreement they are asked to sign to ensure that they retain copyright or have a licence to use the work for future purposes.
Note that the commissioning rule does not apply to literary works or musical works, so if a doctoral candidate commissions music or a text for inclusion in a work that they also want to include in their thesis, they should either ensure that copyright is assigned to them in writing or that the work is licensed to enable the thesis to be deposited in the repository.
If the creator is unpaid (in effect has given their work), then the work will have to be assigned to the commissioner by way of a deed for them to own copyright. The deed must be signed and the signature witnessed. However, only a nominal sum is generally sufficient to be regarded as payment.
In summary, where a work is commissioned and paid for and that work will form part of a submitted thesis, the candidate who has commissioned that work by default owns the copyright in that work—unless it is a musical work or a literary work. If ownership of the work is unable to be obtained, then a license or permission from the copyright owner to use that work is sufficient.
And to emphasise the take home message: all doctoral candidates should talk about any copyright issues early on as they make decisions about the doctoral route. Then, if copyright is required, they should get consents as early as possible so that submission of the thesis is able to go ahead smoothly.
Melanie Johnson, the copyright advisor at the University of Auckland, has explained copyright as it affects those posting doctoral theses on a digital portal in this post and the previous one. Make sure that you read both!