There are two sides to copyright in academic research and publication:
- Your rights in the copyrighted works you are creating, such as dissertations, scholarly articles, and books
- The rights of other authors or creators in the copyrighted works you are using.
In addition, contracts and licensing play an important role. Scholars and graduate students sign contracts in the form of deposit and publication agreements:
- With the Rutgers digital repository RUetd when depositing theses and dissertations as required by most departments
- With the company ProQuest when submitting theses and dissertations as required by certain departments
- With publishers when signing publication agreements for scholarly articles and books
Deposit agreements and publication agreements are legal contracts. You should read your contracts carefully, understand them, make careful decisions in negotiating them, and retain copies of them for future use.
In addition, use of third-party works in academic publication involves understanding the licenses associated with those works.
Copyright ownership in theses and dissertations at Rutgers
Rutgers thesis and dissertation authors hold copyright in their original theses and dissertations.
This is affirmed in the Rutgers University Copyright Policy, Section III:
“Students typically will own the copyright to works created as a requirement of their coursework, degree, or certificate program. The university, however, retains the right to use student works for pedagogical, scholarly, and administrative purposes.”
It is affirmed in the Legacy UMDNJ policies associated with Intellectual Property: Copyrights & Royalties, Section VII.A.2:
“Traditional Works of Scholarship as defined herein shall be deemed as having been created outside the scope of employment of the Creator. Copyright ownership of such works shall vest with the Creator.”
Understanding your thesis and dissertation agreements
Rutgers departments set their own requirements for thesis and dissertation deposit. Most departments require that dissertations be submitted electronically to the Rutgers open access digital repository, RUetd, for preservation and public access, allowing embargoes as a matter of choice for the student author. The Rutgers system for deposit of electronic thesis and dissertations (referred to as ETDs) was established in 2007. Before that, dissertations were considered “unpublished”. They are now considered “published” unless the author places an embargo on the thesis or dissertation. When depositing a thesis or dissertation in RUetd, you grant a non-exclusive right to RUL to archive, reproduce, and distribute the thesis or dissertation.
Many departments also continue to partner with ProQuest, (formerly ProQuest/UMI) a company whose thesis and dissertation publishing business has its origins in University Microfilms International (UMI) that began in 1938 to partner with academic institutions to archive and provide access to theses and dissertations. For many years UMI served as a national archive of theses and dissertations, also expanding their scope to international theses and dissertations. ProQuest continues to serve as a trusted full-text archive of theses and dissertations and has been recognized as Offsite Digital Repository by the Library of Congress. For departments that also require submission to ProQuest, you grant ProQuest the right to reproduce and distribute your thesis or dissertation under traditional or open access publishing.
Rutgers Electronic Theses & Dissertations (RUetd) Deposit Agreement
At Rutgers, generally authors submit dissertations to RUetd for archiving and public access. Some departments also require that masters’ theses be submitted to RUetd.
As an author, you will sign a deposit agreement granting a non-exclusive right to Rutgers to archive, reproduce, and distribute your thesis or dissertation. Your thesis or dissertation is considered “published” in RUetd unless it is embargoed.
In some situations, a thesis or dissertation author may need to delay public availability, or “publication,” of his or her work. For this purpose, authors are offered an option to embargo their work. When submitting the thesis or dissertation, you may choose to make it immediately available to the global public or to embargo the work. RUcore offers embargo periods of six months, one year, or two years. Typical reasons for choosing embargos are a student’s wish to produce a scholarly book or article related to the research before the thesis or dissertation is made available to the public, to maximally benefit from your own research before others do, to enhance research on the topic before the thesis or dissertation is made available to the public, to comply with patent or technology transfer requirements, or to comply with data privacy requirements.
Because you hold the copyright in the thesis or dissertation, you have the right to make the work publicly available in the manner and at the time you choose.
ProQuest Publishing Agreement
If your department requires submission of your thesis or dissertation to ProQuest, you will also sign a Publishing Agreement, granting a non-exclusive, worldwide right for ProQuest to preserve your thesis or dissertation and make it publicly available. It is your responsibility to read and understand this agreement. You should also read the accompanying FAQ.
You will make several choices in signing this agreement.
- You will have two publishing options to consider:
- Traditional Publishing allows ProQuest to distribute copies. ProQuest will pay royalties of 10% of its net revenue from sales of your work. The fee for this option is $25 (as of January 2015).
- Open Access Publishing PLUS allows ProQuest to make the thesis or dissertation available for free download to public and may offer copies of the work for sale, but will not pay royalties to the author. The fee for this option is $25 (as of January 2015).
- In either case, you may choose to delay access to the full text of your work by choosing to embargo it. ProQuest offers embargo period of six months, one year, or two years.
- Whether to allow major search engines (e.g. Google, Yahoo) to discover your work. Discoverability of your work through search engines increases the chance that others will read and utilize your work in their scholarship. This may be more desirable for some authors and less desirable for others.
- Whether to register the copyright in your thesis or dissertation, and if so, whether to take advantage of ProQuest’s service to register the copyright on your behalf. Your work is copyrighted as an original work upon its creation. Copyright registration is not required as a condition for obtaining copyright and is optional, but has certain advantages. See FAQ on copyright registration.
- If you wish to register the copyright in your thesis or dissertation, you may file a basic electronic copyright registration directly with the U.S. Copyright Office for $35 or file a basic registration using print submission for $65 (fees as of January 2015).
- If you choose to have ProQuest submit an application on your behalf, the cost will be $55 through ProQuest (fees as of January 2015). Your thesis or dissertation will be registered as a published work.
Use of third party materials in your thesis or dissertation
Among the decisions a student makes when authoring a thesis or dissertation is the extent to which third-party copyrighted works are used to support an analysis, provide background information, serve as evidence, or in any other way to support the student’s analysis. The scholarly process involves assimilating and building on previous scholarship. This typically means quoting other authors, visualizing ideas with images (photographs, charts, diagrams, graphs, maps), utilizing previously created data, or incorporating musical works, sound recordings, or audiovisual works into your work.
When using works created by others, it is your responsibility to ensure that your use falls within the within the scope of the fair use exception or within the terms of any license associated with the work. If the license does not permit the use, or if your use would be considered to exceed the scope of the fair use exception, then you may need to obtain permission from the copyright holder to use the third-party work in your thesis or dissertation.
General rules of thumb:
- Fair use supports use of an amount appropriate to your research objectives and closely tied to critical analysis.
- Always provide attribution in the form of a citation.
- Use of archival material also customarily involves a credit line to the archive.
- Ensure that there are no concerns related to privacy and publicity rights, confidentiality, patents, trademarks, contracts, licenses, other laws or regulations that would violate the rights of others.
- Uses should not interfere with the market for the original work.
- If any license agreement applies to the works you wish to use, you need to consult the license terms. Many online licenses permit noncommercial scholarly uses or permit fair use of works.
- Generally you should not alter or modify any third party work being used in your dissertation without permission from the copyright holder.
It is the student’s responsibility to obtain permissions for uses that exceed fair use or for which fair use does not apply. Your adviser may be able to help you in making fair use assessments on use of third-party works.
When using unlicensed works under the fair use exception, remember that fair use supports reasonable, limited, scholarly uses of material in amounts appropriate to your research objectives and closely tied to your critical analysis. Fair use is a sliding scale. If you are in doubt about using a third-party copyrighted work, it may be helpful to use part of a work rather than the entire work, or to use a smaller portion, or to use fewer third party copyrighted works in your thesis or dissertation, or to use a low resolution rather than a high resolution image, if you can effectively create your analysis in this way.
ProQuest and fair use
This responsibility is reflected in the ProQuest Publishing Agreement which requires each author to represent and warrant that he or she has obtained all necessary rights to permit ProQuest to reproduce and distribute third party materials contained in any part of the thesis or dissertation and to agree that he or she will indemnify ProQuest/UMI for any third party claims related to the thesis or dissertation as submitted for publication.
ProQuest provides a useful guide that explains this process. “Copyright and Your Dissertation or Thesis” outlines the kinds of materials for which ProQuest might require you to obtain permission from a copyright holder, and provides a sample permission letter. See also Obtaining Permissions in this website.
ProQuest also provides the manual Copyright and Your Dissertation or Thesis: Ownership, Fair Use, and Your Rights and Responsibilities, that contains helpful scenarios for the dissertation author.
RUetd and fair use
The RUetd deposit agreement confirms that the responsibility for obtaining copyright permissions rests with the student. It requires each author to represent that the thesis or dissertation and its abstract do not infringe or violate any rights of others and that the author has obtained written permissions, when necessary, from the owner(s) of each third party copyrighted matter to be included in the thesis or dissertation and will supply copies of such upon request by the graduate school. It is the student’s responsibility to obtain permissions for uses that exceed fair use or for which fair use does not apply. Your adviser may be able to help you in making fair use assessments on use of third-party works.
A common situation in graduate schools today is that students wish to use their previously published works, mainly scholarly articles, in their theses and dissertations. If the student has transferred the copyright in his or her scholarly articles to a publisher, questions often arise as to whether permissions from the publisher are required before including the article in the thesis or dissertation.
The Rutgers Graduate School-New Brunswick has endorsed Guidelines on Using Previously Published Work in Theses and Dissertations to explain these questions. Any student faced with the issue of prior published works should read these guidelines recommending that the thesis or dissertation author:
- Properly cite the prior work
- Clarify the student’s contribution to the prior work
- Read the publication agreement carefully
- If copyright was transferred to a publisher:
- Determine whether the publication agreement allows for use in a thesis or dissertation without obtaining permission, or
- Obtain permission from the publisher
- Respect the rights of co-authors.
Scholarly publishing in the traditional and the open access landscape
The scholarly publishing environment is rapidly evolving in ways that present both early scholars and established scholars with more options and more decisions. Traditionally, all scholarly articles and books were published after a peer review process, an editing, and copyediting process, and they were distributed by publishers in the position to print and make high quality scholarly works available to the world. The international copyright system was established in the 18th century to support the growth of the publishing industry that succeeded in producing the vast numbers of books and journals held in libraries across the world.
In the 21st century, traditional publishing practices support the creation and distribution of high quality academic literature, as they have for centuries. The publishing landscape has also seen the rise open access publishing made possible by the ready availability of technology to accomplish the publishing and distribution of scholarly works. Open access publishing allows for works to be read and used by more people across the globe.
Many publishers have embraced new models of scholarly publishing to accommodate open access in the 21st century for both books and scholarly articles. Universities today also promote the opportunities afforded by open access to books and scholarly journal publications by adopting open access policies and by supporting open access publications. In addition, self-publishing of works has become a viable option for some scholars interested in taking a more independent approach to distributing their works.
In recent years we have also seen the rise of national government policies supporting open access to publications created from taxpayer-funded research, and open data policies. All these forms of open access are based on compliance with copyright law and other applicable law and are not intended to undermine intellectual property rights. They are also not intended to violate publication agreements which an author signs with a publisher. For this reason it is important to understand publication agreements: what they allow and how they function alongside open access policies.
Scholars face a different decision-making process today than they did in the past. Because you hold the copyright in your original scholarly works, you have the right to make those works publicly available in the manner and at the time you choose. The decisions you make in publishing your works-- which publisher to choose, whether the work will be made available in a traditional manner or as an open access publication, or both, when your work will first be made available to the public lawfully, and whether to consider self-publishing-- have a greater impact on distribution of and access to your works than ever before.
Publishing with traditional publishers
Most scholars continue to work with traditional journal publishers and book publishers who provide well-established production and distribution services. Many publishers today will offer scholars options for making their works available through traditional business models or through open access models. These options are available to you when you sign publication agreements. Your responsibility as an author is to read your publication agreements carefully, understand them, make careful decisions in negotiating them, and retain copies of them for future use.
Retaining your copyright or transferring it to a publisher
Some publishers require an author to transfer his or her copyright as a condition for publication, while others sign nonexclusive licenses with authors for the right to first publish the author’s work. Sometimes authors are able to negotiate with publishers on this point and sometimes it is not possible. Retaining copyright rather than transferring to a publisher may leave the author with more flexibility with respect to future uses, but even if copyright is transferred to a publisher, significant flexibility may be built into the publication agreement.
If an author wishes to retain his or her copyright, this must be part of a negotiation process with a publisher. Tools such as an authors’ addendum may be helpful in articulating negotiation points. The BTAA Author’s Copyright Contract Addendum is an example.
Even when copyright transfers are part of publishing agreements, it is often possible to negotiate rights to enable your future uses of your own works for scholarly and teaching purposes. Authors may wish to negotiate with publishers for rights to use, reproduce, distribute, display, perform, create derivative works from, revise, or republish their works, for:
- One’s own teaching
- Professional presentations
- Sharing with professional colleagues
- Depositing a version of the work in an institutional digital repository, such as SOAR/RUcore at Rutgers
- Institutional uses
Your scholarly publications: use of third party works
Whether you are publishing in a traditional or an open access publication, when using works created by others, it is your responsibility to ensure that your use falls within the scope of the fair use exception or within the terms of any license associated with the work. If the license does not permit the use, or if your use would be considered to exceed the scope of the fair use exception, then you may need to obtain permission from the copyright holder to use the third-party work in the scholarly publication. If you are publishing in an international journal, it is more likely that permissions may be necessary to comply with the copyright laws of other countries.
Publishers set their own policies for requiring copyright permissions. Publishers have legitimate concerns about global access to copyrighted works and liability resulting from possible infringement. Publishers often require the authe to obtain permissions for uses deemed to exceed fair use. For example, it is common for publishers to require that permissions be obtained for use of photographs and other images taken from previously published works or taken from archives. It is generally the author’s responsibility to obtain permissions for uses when the publisher requires them.
Permissions may be obtained from the copyright holder directly. This may or may not involve payment. The Copyright Clearance Center and another collective management organizations offer permissions services for works they manage. For international works, IFRRO is the main international network of collective management organizations that facilitates permissions for copyrighted material. It is sometimes difficult to obtain images for older works, works of small publishers, works of publishers that no longer exist, and many types of foreign works. Authors need to be prepared for this.
Authors also need to be aware that most archives do not hold copyright in most of the materials they hold. Archives collect materials to preserve and provide access to them but generally do not hold the copyrights. They typically advise scholars that it is their responsibility to obtain permissions that may be required to use works for purposes other than private study, scholarship, or research, or in excess of fair use.
In some cases, when a work that an author wishes to copy and include in a scholarly publication is very old or when efforts to identify or locate a copyright holder on such a work fail, a publisher may accept evidence of reasonably diligent search for the copyright holder in lieu of permissions. If a publisher agrees to this, the author will need to compile evidence to show that there is no known rightsholder to contact for permission. But ultimately it is the publisher’s decision whether to allow third-party copyrighted works to be included in the scholarly publication if obtaining permissions is not possible.
Authors should be aware that it is a common practice for publishers to require that authors indemnify them concerning use of third-party copyrighted works. This means that the liability for an infringement would rest with the author.
In cases where it is not possible to obtain permission, or even to identify or locate a current copyright holder, an author may be forced to forego use of a particular work or image that he or she had hoped to include in the publication. When this happens it is regrettable, but researchers need to be prepared for the possibility.
Many traditional publishers of scholarly journals now offer new models of scholarly publishing to accommodate open access, allowing for broader distribution of journal articles. Some publishers also offer open access publishing for books.
- “Hybrid” journals
Many traditional scholarly journals now offer an open access option, often involving a fee paid to the publisher, commonly referred to as an article processing charge (APC) or author publication fee. If the author chooses the open access option and pays the required fee, the individual article will be made available as an open access article. In hybrid journals, articles that are not selected under the open access option are available through standard subscription or sale only.
When an author chooses for his or her article to be published as an open access article in a hybrid journal, the publisher has the legal right to make it available broadly to the world under the conditions of the publication agreement. The SHERPA/RoMEO Publisher Copyright Policies & Self-Archiving database provides links to publisher copyright policies that detail publication options for various journals.
- Fully open access journals
Fully open access journals offer even greater possibilities for global accessibility of copyrighted works. Fully open access journals generally operate on the basis of non-exclusive licenses with authors who retain their copyrights. Open access journals may charge an article processing charge (APC). When an author publishes in an open access journal, the publisher has the legal right to make the article available broadly to the world under the conditions of the publication agreement.
A list of open access journal publishers may be found in the Directory of Open Access Journals. This is an online directory that indexes and provides access to high quality, open access, peer-reviewed journals. Rutgers University Libraries publishers a number of open access journals through the Rutgers Open Access Journals site.
- Self-archiving in open access repositories
Many scholarly journal publishers allow authors to self-archive versions of their scholarly articles in institutional or subject-based open access digital repositories, allowing for a parallel distribution of articles: one by the publisher and another through an open access repository. The publisher final version (usually a pdf) is distributed by the publisher, while the open access version, usually called the author’s final version and in manuscript form, is permitted by the publisher to be made available in a digital repository either immediately or after an embargo period.
When selecting a publisher, you may want to review publisher policies on self-archiving to assess your possibilities if you are interested in open access options. The SHERPA/RoMEO Publisher Copyright Policies & Self-Archiving database provides summaries of publisher policies on self-archiving and indicates which version of your work publishers allows you to post to an institutional repository or on your own website.
You may also consult publisher websites directly for author self-archiving policy. The publisher sites are usually more up to date and more detailed.
Universities encourage deposit of authors’ versions of scholarly journal articles in open access digital repositories when this is done lawfully and following established practices to ensure that there are no copyright, contract, or other legal violations. This means that deposit is consistent with publisher policies and with the publication agreement.
Rutgers provides information on open access in its website on Scholarly Open Access at Rutgers (SOAR). The SOAR portal site was developed in connection with the implementation of the Rutgers Open Access Policy on September 1, 2015.
- Open access books
Self-publishing of works has become a viable option for some scholars interested in taking a more independent approach to distributing their works in an open access framework. Publishers and university publishers are also developing open access book programs and open textbook programs. The Directory of Open Access Books indexes academic, peer reviewed, open access books that are made publicly available under various types of licenses. The license terms associated with each book display as a link.