Re: [digital-copyright] Copyright protected works used in ETD and made accessible via institutional repository

[John Mitchell <john@xxxxxxxxxxxxxxxxxx>]

Without disputing Gail's comment, I suggest also taking one step back to
re-examine the sentence, "Permission was obtained and documented for the work
to appear in the thesis."

Since there is no exclusive right "to do or to authorize the work to appear",
much less an "appear in a thesis," I suggest the starting point should address
two questions:
	(1) whether the appearance of the work was one for which permission was not
even needed. If, for example, if it was a quotation for which no permission
was needed because it constituted fair use or because the portion quoted was
not copyrighted, then there is no need to go further. The fact that permission
may have been sought and obtained despite being unnecessary should not limit
subsequent uses.
	(2) if the answer to (1) is "no", then the question is what copyright-limited
permissions were granted. I would hope that, when a thesis requires a
copyright license, it would not be so limited as to give the author of the
quoted material the right to authorize or prohibit subsequent reproduction or
display of the thesis without first redacting the quote, but that depends on
the fine print.

John

On Apr 29, 2013, at 2:33 PM, Gail Clement wrote:

> Dear Nora and other colleagues,
>
> The subject of copyright and included third party works in ETDs in a
commonly
> recurring topic on the ETD-L listserv and you can find past postings on
this
> topic in the listserv archives at
http://listserv.vt.edu/cgi-bin/wa?A0=ETD-L.
>
> That said, it is sometimes the case that included third party works may be
> included in the ETD under the provision of Fair Use, and the fact that the
ETD
> is disseminated via the open access repository is generally thought to be
okay
> in such a scenario.  However, if the ETD were to be distributed by a
> commercial publisher through its fee-based database, the fair use rationale
> may need to be reconsidered.
>
> In the situation you describe, however, permission has been secured so it
now
> seems that the ETD author is acting under a license (another term for
> permission).  It is important in such a case to follow the conditions
included
> the license.  In the request for permission, did the student specify that
the
> work was being distributed in the OA repository?  if so, the permission
should
> cover that.  If the student did not specify how the work was being
> distributed, the student may need to confirm with the party providing the
> permission. OR...
>
> .....Alternatively, the student could assess his use of the third party
> materials in the ETD to see if it falls within Fair Use.  If it does, no
> permission is needed.  With Fair Use, the "permission" is coming from US
> Copyright statute, US Code, Title 17, Section 107.
>
> Gail Clement
>
> Gail P. Clement
> Scholarly Communications Librarian & Associate Professor
> Digital Services and Scholarly Communication
> University Libraries
> Texas A&M University
> gclement@xxxxxxxx
>
> 5000 TAMU | College Station, TX 77843-5000 |
> Tel. 979.862.1635 | Fax. 979.845.6238
> http://library.tamu.edu
>
>
>
>
>
> -----Original Message-----
> From: Nora Allred [mailto:nsallred@xxxxxxx]
> Sent: Monday, April 29, 2013 1:22 PM
> To: digital-copyright@xxxxxxxxxxxxxx
> Subject: [digital-copyright] Copyright protected works used in ETD and made
> accessible via institutional repository
>
> Dear Colleagues,
>
> We are setting up our institutional repository and encountered a question
from
> a student about copyright permission and making his thesis open access.
The
> student's thesis contains copyright protected work.
> Permission was obtained and documented for the work to appear in the
thesis.
> Can the student make the thesis open access for the institutional
repository
> without requesting permission for the specific use of the IR (which is open
> access?)  Is the institution at risk by putting any thesis/dissertation
into
> the IR without checking the permissions first?  Or does the original rights
> holder assume that their content will be subsequently copied (either
through
> OA or the selling of copies of the thesis through a publisher) without
> royalty?
>
> Any insights would be very much appreciated.  Thank you in advance for your
> consideration.
>
> Sincerley,
> Nora Allred
>
> --
> Nora Allred
> Reference & Copyright Librarian
> Interlibrary Loan Coordinator (EZT, za007) J. R. Van Pelt and Opie Library
> Michigan Technological University Houghton, MI 49931
> 906-487-3208