Copyright Essentials for Scholarly Work
Copyright law governs many uses of scholarly and other creative works. Getting to know a few key copyright concepts will serve you well as you prepare and pursue publication of your scholarly work, whether it’s a website, a journal article, a book chapter, a thesis or dissertation.
Copyright affects your work in two primary ways: how and when you can use copyrighted third-party content, and your rights and the opportunities you have to share your work as the author of your thesis or dissertation. This overview will help you get started, and suggest a few additional resources if you want to learn more.
In most circumstances, you own the copyright in your work, but copyright may affect how you can use third-party works.
- Copyright comprises a “bundle of rights” to copy, adapt/rework, distribute, publicly display and publicly perform a protected work.
- As a student, you typically own the copyright to your thesis or dissertation as soon as it is written, and you can license or transfer your rights to others.
- One important exception: if you have previously published some or all of your thesis or dissertation in other venues, you may have transferred copyright ownership, or granted an exclusive license, to the publisher. This may affect your right to deposit the same work to Libra. Also, if your work is part of a third-party-sponsored research project, others may have an ownership interest in your work. In those cases, it is important to read your agreements with publishers and sponsors, and to consult with your advisor, to determine whether you have the right to post your work in Libra. Many publishers and sponsors of research explicitly grant permission to do so in their standard agreements, or are willing to grant permission upon request for purposes of fulfilling graduation requirements, but you should confirm this before submitting previously-published material in Libra.
- You will need to grant the University permission to provide access to your thesis or dissertation in Libra, for example. You may also choose to use a Creative Commons license to grant the general public permission to share and reuse your work, under conditions you choose.
- If a limitation or exception to copyright, such as fair use, does not apply, you may need to get permission from other copyright owners if you want to copy their protected work in your thesis or dissertation.
Copyright law encourages free use of a wide variety of materials in a wide variety of circumstances, especially for scholarship.
- Copyright law does not protect everything. Facts, ideas, words and phrases, titles, inventions, works of the federal government, fashion designs, and more are excluded categorically from copyright. Sometimes these items are incorporated in copyrighted works, such as when a historical fact is recounted in a book, but that does not give the copyright owner control over the underlying fact. When facts and ideas are separated from the author’s particular way of expressing them, there is no need to seek permission for their use (although attribution may of course still be appropriate!).
- Copyright protection does not last forever. Anything published in the US before 1923 is in the public domain and free to use for any purpose. Unpublished and foreign works are more complicated, but also rise eventually into the public domain. Some useful guides to identifying works in the public domain include Copyright Term and the Public Domain in the United States by Cornell University and the American Library Association’s copyright slider.
- The most important limitation to copyright is the balancing right of fair use (codified at Section 107 of the Copyright Act) which permits free use of copyrighted materials in socially beneficial contexts. Fair use is evaluated on a case-by-case basis, weighing the social value of the new use against economic harm to the copyright holder. Fair use is discussed in greater detail below.
- Courts do not enforce copyright against “de minimis” uses. The term is derived from the Latin phrase “de minimis non curat lex,” or “the law does not concern itself with trifles.” Quoting a sentence or two from a much longer work, for example, is likely a de minimis use and does not require permission or even a fair use evaluation.
- Other exceptions to the exclusive rights of copyright holders are designed to support teaching, learning, library activities, and accommodations for persons with disabilities. For more on these important copyright exceptions, see the copyright resources links at the end of this document.
- Creative Commons licenses allow copyright holders to grant blanket permission to the public to make free use of their works, so long as the use meets certain conditions (such as attribution, or refraining from commercial exploitation).
- Libra lets you choose whether to use an open license when you deposit your work. You may choose either “All Rights Reserved” (granting no license to the public, other than the right to access the work in Libra) or CC-BY (permitting free use with proper attribution) from the drop-down menu. We will prominently display the CC license you choose as part of the record for your work. This helps readers find your work, and makes it more likely that it will be read and re-used. You should also include the license information among the front pages of the version you deposit. CC licenses are a key tool of the Open Access movement, which works to expand free online access to scholarship. Learn more about Open Access at UVA here. The Authors Alliance has a helpful FAQ about open access for authors here.
- Creative Commons licenses are irrevocable—once you publish the work to the web with a CC license attached, you are bound by those terms and anyone who complies with them is free to use your work accordingly. So, think carefully about whether you want to make your work available in this way before you choose an open license.
- Accordingly, this decision can be a source of anxiety for some graduate students, who worry that openly-licensed or openly available versions of their work may reduce their future chances of publishing a revised version with a reputable publisher. Some useful information about these concerns is available here.
- You can learn much more about CC licenses generally at the Creative Commons website.
Registration and proper copyright notice are worth considering, even though they are not strictly necessary for copyright protection.
- Your thesis or dissertation is protected by copyright the moment you fix it into a “tangible medium” such as paper, computer file, or film. You don’t have to register your work with the US Copyright Office to receive protection. But…
- Registration has benefits. It places the world on notice of your ownership of your work, allows you to seek much higher legal penalties against alleged infringers of your copyright, and is required before commencing any infringement lawsuit. If you think you might ever want to license your work for profit or enforce your copyright against others, registration is worth considering.
- Registration is cheap and easy to do yourself. You may register your work online via the U.S. Copyright Office’s user-friendly website for a $35 fee. Copyright registration does not require legal assistance.
- You are not required to place a copyright notice (“© 2016 Jane Doe”) on your thesis or dissertation to secure its copyright. Under previous US law, publication without proper notice risked forfeiting copyright protection, but this is no longer the case.
- However, including notice is good practice because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. It also prevents an infringer from using the defense that they did not realize your work was protected by copyright.
- The proper format for a copyright notice is © (the letter C in a circle), or the word “Copyright,” or the abbreviation “Copr.”; the year of first publication; and the name of the copyright owner. For example, © 2016 Jane Doe.
Learn more about the right of fair use, which protects many valuable scholarly activities.
- Fair use is a right to use copyrighted works without permission in ways that benefit society without undue harm to copyright holders.
- Fair use often applies to scholarly uses such as criticism and commentary, because they increase knowledge without competing unfairly with original works. Quoting or reproducing a work in the course of a critique of that work, or as evidence for a scholarly argument, are core fair uses. The Copyright Act itself lists criticism, comment, news reporting, teaching, and scholarship as examples of uses that are often fair. However, use for these purposes is not always, automatically fair. Each use needs its own evaluation.
- The law tells courts to consider four factors as they evaluate fair use:
- Purpose and character of the intended use, including whether the use is for commercial or for non-profit educational purposes
- Nature of the copyrighted work being used
- Amount and substantiality of the portion being used
- Effect of the use on the market for or value of the copyrighted work
- On their own, these factors are not very helpful, but courts routinely weigh the factors with an eye toward two key questions. If the answer to both of these is “yes,” your fair use case is strong:
- Is your use “transformative,” i.e., use for a new and beneficial purpose (such as critique)? The opposite of a transformative use is a “merely superseding” use, i.e., one that competes unfairly with the work used. The Supreme Court has said that transformative uses are “at the heart” of fair use, while superseding uses are typically infringing.
- If your purpose is transformative, have you used an appropriate amount for that purpose? You need to be able to explain why the amount you used is appropriate, and why the amount you’ve used won’t serve as a substitute for the original. You don’t have to use the bare minimum, but you should avoid using excessive amounts.
In making a fair use determination, you may wish to refer to best practices in various scholarly communities. Several codes and statements are available online, including:
- Use of images in scholarship is discussed in both the VRA Statement on the Fair Use of Images in Teaching, Research, and Study (which mentions theses and dissertations specifically), and the CAA Code of Best Practices for Fair Use for the Visual Arts.
- Other best practices statements discuss poetry, communications research, media studies publishing, and dance-related materials. Even if there is not a best practices statement that addresses your discipline, it may be useful to reason by analogy, as most scholarship shares core values and practices. There is a strong cross-discipline consensus, for example, that use of copyrighted material for purposes of critique or in support of scholarly argument is often fair.
- Although you do not have to keep a record of your rationale for every fair use in your work, it is useful to be thoughtful throughout the process of creating your work and be prepared to defend your choices.
If you determine that your use of a protected work does not qualify as a fair use, you may need to request permission from the copyright holder or license the work via a permissions agency.
- Some copyrighted works are made available under a Creative Commons (CC) license, which allows free re-use without permission so long as you comply with certain conditions (such as providing proper attribution). Many photos and illustrations are available online under CC licenses, and can be useful substitutes for images where permission is difficult or expensive to obtain. Easing the process of permission-seeking for fellow scholars and teachers is one reason you might consider using a CC license for your own work.
- The permissions process may require several steps, the first being to locate the copyright owner. The copyright owner may be the author or artist, his or her heirs, a publisher, a museum, or other entity.
- In the case of reproductions of cultural objects such as paintings or manuscripts, the copyright holder may not be the same as the institution that owns the physical item. For example, the UVA Library typically does not own the copyright to manuscript materials housed in the Library’s Special Collections. Some libraries and museums require that you ask permission, and even pay fees, to use reproductions of works in their collections, even when they do not own copyright (sometimes even for works in the public domain!). You may have agreed to do so when you accessed the work online, or requested a copy from the institution. Be careful what you agree to in the course of your research.
- A permissions agency may be able to simplify the permissions process, but will charge a fee.
Finally, be careful that you do not confuse copyright with issues of plagiarism and academic integrity.
- Copyright is created by federal law and infringement is the unauthorized use of protected material from another’s copyrighted work. Attribution is neither necessary nor sufficient to prevent infringement.
- Plagiarism is passing another’s work off as your own and is an ethical and often institutional policy offense. Even if your use of another’s work is permitted by copyright law, you may be committing plagiarism if you use the work or ideas of another person and fail to attribute them properly. Permission is neither necessary nor sufficient to prevent plagiarism.
The internet is full of copyright information. Unfortunately, much of it is misinformation, disinformation, or old information. Even seemingly reliable sources, like universities or government agencies, often have outdated or incomplete copyright guidance floating around on their websites. Below are some resources that, at the time of this writing (Summer 2016), we believe contain useful information. We will upgrade them periodically to reflect the development of the law and the introduction of new and useful resources.
Resources from other Universities
- Copyright Law & Graduate Research: New Media, New Rights, and Your New Dissertation by Kenneth D. Crews, available free of charge through UMI, is thorough and detailed treatment of these issues.
- Texas A&M University Copyright Libguide (written by Brandon Butler)
- Copyright Advisory Office (Columbia)
- Copyright Policies (U Conn)
- Copyright Crash Course (University of Texas)
- Copyright and Fair Use (Stanford)
- Copyright Information and Resources (University of Minnesota). UM’s Map of Use Issues and the associated links may be especially useful.
Determining the Copyright Status of a Work
- How to Investigate the Copyright Status of a Work (US Copyright Office)
- Copyright Database (U.S. Copyright Office)
- Copyright Research (Stanford)
- Copyright Term and the Public Domain in the United States
- Is It in the Public Domain? (full guide) (UC Berkeley Samuelson Law, Technology, and Public Policy Clinic)
- Is It in the Public Domain? (flow charts) (UC Berkeley Samuelson Law, Technology, and Public Policy Clinic)
Multimedia (Images, Film, Music, etc)
- Resources Providing Guidance on Academic Use of Images (Visual Resources Association)
- See especially the College Art Association’s Code of Best Practices in Fair Use for the Visual Arts and VRA’s Statement on the Fair Use of Images for Teaching, Research and Study.
- Digital Image Rights Computator (Visual Resources Association)
Fair Use and Digital Rights
- Codes of Best Practices in Fair Use from the Center for Media and Social Impact (American University)
- The Association of Research Libraries fair use resources
- Berkman Center for Internet & Society (Harvard Law School)
- Electronic Frontier Foundation
- Authors Alliance
- “Fair Use in Seven Words”