One of the most common concerns I hear from graduating students is confusion about copyright. Students in the sciences frequently take an “article as chapter” approach to their dissertation, reproducing work (figures, tables, etc.) that they’ve already published elsewhere. Art History students may need to use images to advance their argument, while students in the Music program might wish to annotate scores. We do this work everyday as part of our scholarship, and we do not consider it to be copyright infringement because of something called “fair use.” But is it really? Section 107 of the U.S. Copyright Act provides for the reuse of existing work without permission under certain conditions, and it forms the legal basis of our work as scholars and critics.
The Association of Research Libraries (ARL) has commissioned an annual week-long celebration of the doctrines of fair use (and, in Canada, “fair dealing”) in an attempt to educate the public about their rights with respect to copyright law. The important point to make here is that fair use is a right—or as James Neal says, “fair use is not civil disobedience.”
For the most part,* reproducing material in your dissertation or thesis will fall under the umbrella of fair use. That said, whenever you include previously published materials in your work you should carefully consider whether an argument for fair use can be made. There are no strict rules here, unfortunately (we can’t say precisely how many paragraphs of text are allowed, or what resolution of image would constitute infringement), but certain factors have been viewed favorably by the courts. These are listed below as they might apply to your dissertation or thesis:
- The purpose and character of the use. Dissertations and theses are fundamentally works of scholarship and criticism, and, ideally, promote the creation of new knowledge through the transformative use of other works (which are also, hopefully, impeccably cited). The is not the sole factor, however, and the courts look at all of the factors combined in making a fair use determination.
- The nature of the copyrighted work. Here it gets tricky. Extensive reproduction of artworks, creative writing, or unpublished work (letters, diaries, etc.) could outweigh the educational purpose of your project. Use of factual, non-fiction, and published work tends to be viewed more favorably. (Again, “use” here means reproduction—your argument can draw on anything you like, but you may not want to include the whole thing in your thesis.)
- The portion used in relation to the copyrighted work as a whole. Is the amount used appropriate for the purpose of your argument? For example, you may have items reproduced in their entirety in an Appendix for the benefit of your committee members, but it might not be appropriate to include those in the final deposited version.
- The effect of the use upon the potential market. Would the availability of your thesis or dissertation online negatively affect sales of the original work? Are the images included small or low-resolution and therefore unlikely to be copied and reused elsewhere?
Online tools such as the Fair Use Evaluator or a fair use checklist can help you make these determinations and document your decision-making process. As always, dissertation and thesis authors must strike a balance between the amount of evidence presented in the form of reproduction and the argument or interpretation that makes up your scholarly contribution. And, let’s not forget: if what you want to do exceeds what is allowed under “fair use,” you can always ask for permission.
Are you planning on depositing a dissertation or thesis this semester? Be sure to visit the library’s Dissertations and Theses guide and pay special attention to the recently revised Copyright section. We’ll also be holding several information sessions in March to go over deposit procedures, copyright, citation, plagiarism, and embargoes. Keep an eye on this blog for further details!
*As the author/creator of the work, you are responsible for making the final determination regarding copyright and permissions, just as you do regarding plagiarism.