Copyright for Graduate Students

What is copyright and why should I care?

Copyright is a bundle rights granted to an author or creator (or the copyright owner as assigned by author or creator, such as a publisher) under Title 17 of the U.S. Code.  The author, creator, or owner of a work is granted the exclusive right to do or authorize any of the following:

• to reproduce the work in copies or recordings
• to produce derivative works from the original copyrighted work
• to distribute copies or recordings of the work to the public by sale, lease, loan, giveaway, or transfer of ownership
• to perform (dance, music, drama, motion picture, etc.) or display (art, sculpture, graphic design, photograph, etc), including broadcast, the work publicly

In the U.S., copyright laws have grown increasingly restrictive--terms of ownership have extended from 20 years after creation to life of the author plus 70 years or 120 years after creation.  Many authors and creators assume that because they created a work they own it.  However, publishers generally require creators to assign rights to the publisher as a condition of publication. In turn, the publisher provides peer review, copyediting, formatting, publication, and distribution.  Publishers then charge for nearly every use of the work.

What is open access?

Open access is a reaction to the increasing cost of academic publications and increasingly restrictive access, in part resulting from online publishing.  The Repository at St. Cloud State University is an open access repository of student and faculty scholarship and supports the Creative Commons license model for author deposits.  In general, open access licenses are less restrictive than copyright for both users and creators.  However, open access licenses often include some use restrictions.

When do I need to get permission to use copyrighted work of others in my culminating project?

If you want to include the work of others, such as images, charts and figures, audio of video, long quotations, standardized tests or instruments, research results, computer software, etc., you will need to determine if the intended use requires the permission of the copyright holder. Simply crediting the source or copyright holder does not eliminate the need to seek permission for your intended use.

You do not need copyright permission IF:

• The source work is in the public domain.  Determining copyright status can be difficult.  In general, public domain includes works written prior to 1923 and most U.S. government publications.  Refer to Copyright Term and the Public Domain in the United States for more detailed information.
• The work is openly licensed, such as under a Creative Commons license, or explicitly granted by the author.  Many institutional repositories and open access journals provide open access to their content.  Many Web sites and blogs allow an implied open license to use content with attribution.
• Fair use guidelines are followed.

What is "fair use"?

Just as copyright grants rights to creators and owners of content, fair use guidelines starts to identify what rights users have with copyrighted works.  Unlike copyright, fair use is not well-defined in U.S. Public Law.  Instead, 17 U.S.C. 107-109 identifies limitations on exclusive rights, creating the foundation for a doctrine on "fair use of a copyrighted work, including reproduction in copies or recordings, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."  Academic freedom and free speech depend upon informed application and active assertion of the complicated fair use doctine.  

How do I determine what is fair use?

Fair use checklists, such as the Fair Use Checklist at Columbia University or the American Library Association's Fair Use Evaluator, help to focus on the factual circumstances of your intended use of copyrighted material that are important to your evaluation of fair use.  Whether or not fair use applies in a given situation depends on the particular facts--changing one or more facts may alter the analysis.  A checklist can also provide you a way to document your decision-making process and provide a record of your analysis that can be critical in establishing your good faith should a copyright owner question your use.  All fair use checklists require you to address all of the "four factors:"

1. Purpose and character of use.  Educational use tends to be favored over commercial use.  Use of a copyrighted work may be considered fair use in one context, for example scholarship in a thesis or dissertation, may not be in another context, for example a subsequent publication in a journal or book,
2. Nature of the copyrighted work.  Facts, data, ideas, and U.S. government work are generally considered part of the public domain.  The more creative and imaginative a work, the more it is afforded greater copyright protection.
3. Amount of use relative to the size of the copyrighted work.  With copyrighted works, the less you use as a percentage of the work as a whole, the more likely you're operating within fair use guidelines. However, if what you use constitutes the core or central concept of the work, it would probably oppose fair use.
4. Effect of use on the market for the copyrighted work.  If your use of the copyrighted work disparages or supplants it, then it is unlikely to be considered a fair use. If your use builds upon, extends, or transforms a copyrighted work, then it would probably be considered fair use.  A transformative use that alters a copyrighte work to such an extent that it is seen as something new and original would probably be considered as fair use.  Other indicators in favor of fair use include when the copyright owner does not provide a means for licensing, when the copyrighted work is difficult to obtain, or your own a lawfully acquired or purchased copy of the work.  Other indicators opposing fair use include reasonable access to affordable licensing (such as the Copyright Clearance Center), wide availability of the copyrighted work (including Web access), and repeated or long-term use of copyrighted work.

How can I be certain that my use of copyrighted work is covered by fair use?
To be honest, you can't be entirely certain.  However, by using a copyright checklist honestly, you can make a reasonable good-faith decision.  The checklist resources linked above will help you make the best decisions with regard to your use of copyrighted materials.  Keeping a copy of your checklist results will be important in minimizing your liability if your use of copyrighted works is challenged.  If the your checklist evaluation does not favor fair use, then you need to identify the copyright owner and contact them for permission.

How do I get permission to use the work of others?

1. Identify, locate, and directly contact the copyright holder--creator/author, publisher, heir, or other.  The Columbia University Libraries' Copyright Advisory Office provides detailed information on finding the copyright owner and requesting permissions, including model forms.
2. A permissions agency, such as the Copyright Clearance Center, can facilitate the permissions process with many copyright owners.  Fees will vary widely.

How do I copyright my thesis or dissertation?
Under U.S. Copyright law, a creator of an "original work" created in a "fixed tangible medium" is immediately and automatically the copyright owner of the work, and your work is protected. From the moment you create your thesis or dissertation, you own the copyright; there is no need for formally register your work.  

Registering a copyright to assert ownership is not required.  The benefit of registration is that if your copyright is infringed you may sue for punitive damages as well as actual damages; if you do not register you may only sue for actual damages.  If you wish to register your work, you may do so online at the Copyright Office.  The Copyright Office charges $35.00 per work for filing; processing an e-filing can take up to eight months.
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What is a Creative Commons license?
Another way to assert your ownership of your thesis or dissertation is to select a Creative Commons license.  Every Creative Commons license allows creators to retain copyright and ownership while allowing others to copy, distribute, and make some uses of their work depending upon the license selected.  The six license options run from least restrictive, Attribution, which allows anyone to download, distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation, to the most restrictive, Attibution-NonCommercial-NoDerivs, which allows anyone to download your work and share it with others as long as they credit you, but they can’t change them in any way or use them commercially.

License selection is a submission option when using the online ETD process. The most restrictive license, Attribution-NonCommercial-NoDerivs, is the default setting for ETDs.   

Fair Use:

• Columbia University Libraries Copyright Advisory Center -- Fair Use Checklist
• American Library Association -- Fair Use Evaluator

 Creative Commons License and Copyright Registration

• Creative Commons -- Choose a License
• United States Copyright Office -- eCO Registration

Copyright Permissions

• United States Copyright Office -- Search Copyright Records
• Copyright Clearance Center -- Get Permission