| Intellectual Property and Electronic
Theses.
22 September 2004
Dr. Theo Andrew
- Link
to Author details
The role of this briefing paper is to raise awareness of the main
issues involved when converting paper-based theses into a digital
format. This change of media has many implications for the way
theses are created, stored, organised, managed and accessed. This
briefing paper specifically examines the agreements required by an
institution when managing and storing theses in electronic format.
This includes existing theses held by institutions in paper format
and those presented by students electronically (born digital). These
agreements typically involve those which may need to be obtained
from the author, the institution or some other third party. A number
of sample agreements are presented, which are intended to be adapted
to suit an individual institution's circumstances.
This paper will be of interest to those:
- responsible for overseeing postgraduate studies within the
University environment,
- accountable for legal compliance and formulating/amending
postgraduate regulations and policy,
- responsible for the implementation and oversight of electronic
theses programmes in their institutions.
A Microsoft Word version of this document which may be suitable
for printing is available by linking here - http://www.jisclegal.ac.uk/pdfs/ethesepaper.doc
JISC Legal would like to remind you that the information provided
in this document is for guidance and should not be considered as
legal advice.
Table of Contents
- Introduction
- Copyright
- Elements
of the Licence Agreement
- Other
Agreements
- Conclusions
- Appendices
1. Introduction
1. This briefing paper is concerned with outlining the issues
which arise for an institution which is considering adopting
electronic theses and dissertations for student work. It is also
concerned with how existing theses accumulated over the years can
now be converted to electronic documents and stored in repositories
which can be accessed on the internet.
The practice of making theses and dissertations available online
is growing internationally. Repositories of Electronic Theses and
Dissertations (ETDs) are now common in universities in North
America, Australia and in many European countries. In the UK, the
Joint Information Systems Committee (JISC), as part of the Focus on
Access to Institutional Resources (FAIR) programme, has funded three
projects to study the issues and challenges associated with the
deposit and management of theses in electronic format. This briefing
paper represents the shared knowledge acquired during the FAIR
programme, whilst implementing electronic theses programmes across
several institutions, including the University of Edinburgh (Theses
Alive! project (1)),
the University of Glasgow (Daedalus project (2))
and The Robert Gordon University (Electronic Theses project (3)).
2. In addition, the FAIR programme has been instrumental in
addressing the technological and intellectual property issues
arising through the adoption, use and delivery of other digital
documents, for example, peer-reviewed journal articles, pre-prints
and book chapters, via the internet. These documents share a number
of characteristics with electronic theses and dissertations, thus
the research findings and outcomes from several other projects
(specifically the SHERPA (4),
TARDis (5)
and RoMEO (6)
projects) have also been valuable in increasing our understanding of
the intellectual property issues, surrounding digital documents and
the internet.
3. Traditionally, the thesis literature has sat uncomfortably on
the boundary of the educational process and research publication.
Fundamentally, in the UK the examination process is a private affair
between the students, examiners and the university. Additionally,
access to theses and dissertations is patchy at best, limited by
physical lending restrictions. As a consequence, theses and
dissertations have gained a reputation for being intractable, and
despite their obvious value they remain part of the 'grey
literature' . The advent of digital media offers the
possibility to open up both processes of examination and
dissemination, further blurring the distinctions between them.
Policy discussion coming out of this debate suggests that there may
be no single answer to what should be open public knowledge and what
should remain private. Any outcome will be guided by the
departmental teaching style, institutional norms and practices.
Certainly the majority of institutions in the UK that have begun the
process of adopting electronic theses have taken the middle-ground
by electing to place their ETDs online reflecting the ethos of Open
Access; to maximise research visibility, usage and impact, without
changing their present format of thesis examination.
4. At its most mundane an ETD is a digital image of the print
distribution object, being still firmly grounded in the traditions
of print. However, the digital format offers a unique opportunity to
create an electronic document unrestricted by conventional
limitations. It is now possible to author a document that contains
both aspects of multimedia and the dynamic presentation of large
data sets that previously were unattainable in print format. These
enhancements of the traditional thesis or dissertation do however
present certain intellectual property difficulties which must be
avoided.
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5. In order to protect intellectual creation a number of
intellectual property rights (IPR) have been created. Several
different types of IPR exist, including copyright, trademark law,
designs and models and patent law. Literary, artistic, dramatic and
musical works are mainly protected by copyright. W ithin the meaning
of the Copyright, Designs and Patents Act (CDPA), 1988,
(s.175) , a British thesis is an unpublished work, and is
protected under the act as such. The Act prohibits re-publication of
any significant part of a thesis by a third party without the
copyright owner's consent. Furthermore, copies of a thesis cannot be
issued to the public without the copyright owner's consent
(s.16).
6. There is a common misconception that any material made
available via the internet is in the public domain and not subject
to any restrictions on use. However any work published on the
internet is subject to the same copyright protection that works
distributed by other media enjoy.
7. Through copyright, the author of an intellectual creation
gains rights which enable them to control the use of their work.
Primarily, authors hold the exclusive right to control how their
work is used. Copyright will be infringed by anyone who reproduces,
adapts or distributes the work without the prior consent of the
author.
8. A number of exceptions are permitted by law under the 'Fair
Dealing' defence. Although there is no precise definition of 'Fair
Dealing' and interpretation is ultimately decided by the courts, it
essentially allows limited copying without permission provided it is
fair and the commercial interests of the rights holder are not
damaged. The principal purposes for which the 'Fair Dealing' defence
may be used are 'Research and Private Study' (excluding sound
recordings and films in both cases), 'Criticism/ Review and News
Reporting'. It is a condition of the Fair Dealing defence that the
source of the work is acknowledged in all cases.
The reader is referred to the Intellectual Property section of
the JISC Legal website for a more comprehensive coverage of Fair
Dealing and Permitted Actions - http://www.jisclegal.ac.uk/ipr/fairdealing.htm (7).
9. No formal registration is required to enjoy copyright
protection. In the UK , as long as the work is original (paragraph
10 below) and is expressed in a particular form (paragraph 11
below), copyright protection is granted as soon as work is recorded
in a permanent manner. Furthermore, the author is also not required
to indicate their ownership through the adoption of the copyright
symbol; however, this may be useful in determining priority if
disputed.
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10. A work is defined to be original if it has been marked by the
personality of its creator in some way. In other words, it must be
apparent that the creator has played an integral role in the
production of the form of the work. There are no precise criteria to
assess originality, however, since it is accepted that the work in a
doctoral thesis presented for examination must make a significant
contribution to knowledge in or understanding of the field of study
and contains material worthy of publication, doctoral theses are
therefore likely to be considered original for the purposes of
copyright law.
11. To promote innovation and creation, copyright does not
protect specific ideas per se, but rather their expression
in a particular form. For example, the original story of
"Little-Snow White" was first written in 1812 by Jacob and
Wilhelm Grimm derived from traditional folk stories. However, the
art, animation and musical score from the 1937 Disney film "Snow
White and the Seven Dwarfs", although derived from the original
production, are protected by separate copyright as it is a new
expression of ideas in a different form to the original.
12. a. Copyright grants the author a negative right, rather than
a privilege. The copyright owner may authorise or prevent certain
restricted acts (e.g. use, copying, and distribution). In addition
the author is recognised as the owner of the economic and the moral
rights to the work. The possession of economic rights enables the
author to take revenue from the exploitation of his/her work through
the exclusive rights to reproduce and communicate his/her work to
the public, with or without any material embodiment. A third party
attempting to do so requires prior consent from the author.
12.b. The moral rights grant the author the paternal right to be
recognised as the creator in perpetuity, the right for the work not
to be subjected to derogatory treatment, and the right not to be
identified as author of something they didn't create. The right of
paternity must be asserted by the author, whilst the other two are
automatic. After death, any moral rights are retained by the heir/s.
13. In common use, the economic and moral rights differ in their
practical application. Currently, for works created in the UK after
1 January 1996, economic rights expire 70 years after the death of
the author. For further information on the duration of copyright see
the information on the UK government backed home of intellectual
property - http://www.intellectual-property.gov.uk/std/faq/copyright/how_long.htm.
These economic rights may be transferred to another legal entity if
the creator wishes to transfer all or part of his/her rights. This
is common practice when academic authors publish in peer-reviewed
journals. Only the economic rights can be transferred in this
fashion. The creator always retains the paternal right to his/her
work if s/he has asserted that right.
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14. As stated in paragraph 7, copyright is originally owned by
the person who created the work. However, the law states that
copyright in a work created in the normal course of employment
belongs to the employing institution. Custom and practice in the UK
may differ for HE institutions (i.e. copyright is usually kept by
the author) and custom and practice would probably be upheld unless
the employment contract specifically states otherwise. Even then, it
may be challengeable if the contract were deemed unreasonable. The
majority of British theses are not authored during the course of
employment and are instead subject to the regulations set out in the
degree rules and regulations of the host institution. Thus, the
typical scenario for most UK higher education institutions is that
the author's (i.e. the student's) copyright subsists in the thesis
and in the abstract of the thesis, or, in the case of a PhD for
Musical Composition, in the portfolio of musical compositions and in
the list of compositions.
15. It is normal practice that upon submission each candidate
will be asked to grant the University the right to publish the
abstract or list of works, and/or to authorise its publication for
any scholarly purpose with proper acknowledgement of authorship (8).
16. Not all universities allow the author to retain copyright
upon completion and submission of their thesis so it may be
necessary to check the Postgraduate Study regulations of each
institution to confirm the copyright ownership. However, where an
institution does own the copyright over submitted theses and
dissertations then it makes the process of adopting an electronic
theses programme that much easier by not requiring a deposit
agreement from the creator.
17. An additional complexity that may arise when determining
copyright ownership is the question of whether any third parties may
own any claim to the intellectual property arising from the doctoral
research. The major research councils in the UK who fund
postgraduate research, including the Economic and Social Research
Council (ESRC), the Engineering and Physical Sciences Research
Council (EPSRC) and the Natural Environment Research Council (NERC),
make no claim to the intellectual property rights arising from
research that they support. In general these research councils do
not lay down any rules about the identification, ownership and
management of intellectual property, but rather delegate
responsibility to the funded institution in each case.
18. Problems in determining the copyright ownership may occur
with research studentships participating in the Collaborative Awards
in Science and Engineering (CASE) scheme. CASE studentships are
partly funded by industrial sponsors, who may have a legitimate
claim to any intellectual property arising from the research. The
major research councils assert that the responsibility for
safeguarding the student’s rights is deemed to rest with the higher
education institution. This position is clearly shown in the
conditions of grant offered by the ESRC (9),
EPSRC (10)
and NERC (11).
In a CASE-funded research studentship it is the norm to include
an agreement which covers ownership of any potential intellectual
property rights during submission of the project proposal. There are
many different kinds of exploitation agreements, so it is possible
that each individual CASE-funded studentship may have different
circumstances surrounding the copyright ownership. Therefore, it is
important that each agreement is checked to make sure there is no
confusion. During drafting of such an agreement there should be
included a clause asserting the right of the student to publish the
thesis in an electronic repository. This would not necessarily
require the student to assert ownership of copyright.
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19. In exceptional circumstances, where the thesis research has
been particularly innovative, and there is potential for commercial
exploitation, it may be desirable for the author to apply for a
patent. A patent application may be successful only if the invention
has never been made public in any way before the date on which an
application for a patent is filed. It also must involve an inventive
step and be capable of industrial application. For more detailed
information on patents the reader is referred to the information
available from the Patent Office (12).
20. Any public disclosure of material, including thesis
publication via the internet, could have an adverse effect on a
patent application. Currently, in order to avoid prior publication
and risk jeopardizing the patent application, thesis authors are
advised to restrict access to their research by applying for a
restriction order if they are considering applying for a patent (see
paragraphs 40 - 42 below). Similarly it is advised that authors of
electronic theses do likewise.
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21. With the introduction of
The Copyright and Rights in Databases Regulations 1997 ('Database
Regulations') (13),
databases have extended protection beyond copyright. In this
amendment to the CDPA 1988, a database is defined to cover
collections of independent works, data or other materials which are
systematically or methodically arranged and can be individually
accessed by electronic or other means (section 3A(1)). This right
protects collections of materials which, although expensive to
compile and commercially valuable, may lack any element of human
intellectual creativity. This UK implementation restricts databases
to collections which are literary works only.
22. This has implications
for electronic theses and dissertations in that any datasets
presented in appendices may be afforded these extended database
rights. Similarly a thesis may have reproduced part of an existing
database, thus when the thesis is published via the internet
permission is required from the database owner (see paragraphs 26 -
27 for factors to be taken into account when including the work of
third parties). Finally, any electronic thesis repository will
intrinsically have a collection of bibliographic data relating to
the deposited theses. The repository owners will be protected
against unauthorized use by third parties of this information.
However, it is worth remembering that not all readers of such
information are human. Most new digital repositories have adopted
the Open Archives Initiative Protocol for Metadata Harvesting
(OAI-PMH) (14).
This protocol supports interoperability among digital repositories
and explicitly makes it possible to harvest and share metadata about
the repositories resources. Thus third party aggregators of
metadata, generally known as service providers, routinely harvest
the database metadata records. Any repository must specifically
allow service providers to do this, whilst being mindful of any
future reuse of their metadata records.
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23. In all cases where copyright is owned by the creator an
agreement is required to cover the special requirements necessary to
store, organise, manage and access electronic theses, irrespective
of whether the creator chooses to make them available via the
internet. A comprehensive deposit and end user's licence agreement
should cover a number of core topics, including a depositor's
declaration, the repository's rights and responsibilities and the
end-user's terms and conditions. The following sections discuss the
individual elements required for each of these agreements before a
suitable licence is constructed. Examples of appropriate Deposit
Licences and End User Licences are then presented in the final
section to help prepare documentation.
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24. Ownership rights issues arise both with the content coming in
(sometimes called upstream rights) and also with the content going
out at the other end (sometimes called downstream rights).
The main function of the depositors declaration is to ensure that
the depositor is the copyright owner, or has the permission of
author/copyright holder (if by proxy) to deposit. The second
function is for the author and any other rights holders, to grant
permission to the host institution to distribute copies of their
thesis via the internet. This is critical as under the
Copyright, Designs and Patents Act, 1988, copies of a
thesis cannot be issued to the public without the copyright owner's
consent (paragraph 5). Equally important is the notion that the
author has sought and gained permission to include any subsidiary
material owned by third party copyright holders. The repository, as
publisher, also needs the depositor to warrant that the content does
not breach any laws including defamation, libel, copyright, and to
accept liability for any legal action arising from any such
breaches.
25. Often a thesis is a composite piece of research that
comprises many strands, usually building upon and quoting previous
research, or including diagrams, pictures or music produced by other
creators. Traditionally in the UK , for the purposes of examination,
inclusion of such copyright material held by a third party has been
tolerated, (see paragraph 8), as the thesis has not been considered
as formally published. Unfortunately there exists ambiguity about
the status of publication when a British thesis, officially classed
as unpublished (paragraph 5), is placed online and is thus made
available to the general public. In any legal sense, making
something available on the internet is publishing. Thus, permission
would be required for this material to be included in the
electronically published thesis. Practically, only the authors know
what material in their thesis requires copyright clearance. It is
unrealistic for an institution to verify each thesis for breach of
third party copyright, to seek permissions if necessary, all on top
of the ancillary checks that need to take place. We suggest that
authors should have the responsibility for this task as they are in
the best position to do so. However, placing the onus on authors can
be a huge burden without support. Therefore it may be necessary to
provide training during the writing process to inform authors of
copyright responsibilities. Such training could be incorporated into
existing Thesis Workshops that many institutions run as part of
their transferable skills programmes for postgraduate students (15).
In addition it may be difficult to persuade the authors of theses
which are part of an institutions bank of existing theses to go back
and clear third party material for electronic conversion and
internet publication. Some incentive to these authors may be that
only by doing so will their theses work become part of the corpus of
materials which are available to coming generations of researchers
who increasingly see the internet and electronic materials as the
main source of material for study.
- Identifying the set of individual elements in the thesis that
may call for copyright clearance and their required use.
Such elements may be extracts of text, diagrams, music, film or
photographs.
- Considering the duration of the copyright protection. If the
material used is more than seventy years old then it may not be
necessary to apply for permission. (see paragraph 13 above)
- Examining whether the use in a thesis falls under the fair
dealing defence and thus exempts the user from requiring a
prior authorisation.
- Identifying all of the copyright owners of the remaining
elements.
- Contacting the copyright holder to authorise the element for
the specific use which has been defined.
27. Each permissions request should incorporate a number of key
components and should address the following points:
- Contact information, to include postal address, telephone and
e-mail.
- Item details, to include the full title of journal or book,
author/s, article title, ISBN/ISSN number, volume, issue, year,
pages.
- Precise details of material usage, e.g. the entire article,
certain pages, certain figure numbers.
- Details of how/where the requested material will be used
(including that it will be included in a repository and published
on the internet if applicable).
- Any additional information or comments which may help in
processing the copyright permissions request.
28. With copyright permission granted it should be a
straightforward task to admit the electronic thesis into the digital
repository. One outstanding concern is how and who retains the
documentation for future reference. With the latest digital
repository software it is a relatively simple matter to archive a
digital copy of the permissions document alongside the thesis. Any
permissions request should include a request for permission in
electronic form to facilitate this. We would recommend this course
of action to counter any future disputes. Such a policy decision is
likely to depend upon the individual institution's circumstances and
background.
29. If permission is not granted for an item to be included then
it is still possible to proceed by either removing or obscuring the
offending element from the electronic version of the thesis. The
print version should remain unaffected by this decision.
30. The repository administrators should safeguard against
third-party copyright material being inadvertently deposited by
clearly indicating that reasonable care has been taken to prevent
such occurrences and that any work will be removed if it is found to
violate any copyright or other rights of any person.
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31. Traditionally the stewardship of thesis literature is the
preserve of the university library. Consequently many electronic
theses programmes have been initiated and run from university
libraries. To facilitate correct procedure a number of agreements
already exist between these university libraries and the thesis
authors, which allow the library to carry out this function. The
agreements between a university library and author will vary from
institution to institution; however each agreement will share some
core commonality to authorise the university library to carry out
some of the following acts including:
- Publishing the abstract of the thesis, and/or authorise others
to do so, for scholarly purposes with proper acknowledgement of
authorship.
- Providing personal data and thesis data to appear in catalogue
records and other alerting media.
- Providing access in situ for consultation by
registered users, either from the host institution or other
academic establishments.
- Either supplying copies on request to other libraries or
individuals, or if part of the British Thesis Service, authorising
the British Library to produce copies for loan or sale.
32. The storage, management and dissemination of electronic
theses and dissertations require the host repository to perform a
series of additional acts that are not currently covered by the
existing agreements between thesis authors and university libraries.
33. Initially it must be made clear to the submitting author that
through submission of their electronic thesis the copyright
ownership is unaffected. One way of doing this is for the deposit
licence to begin with the author granting the repository the
non-exclusive right to carry out the additional acts, and in the
process not compromising the author's rights whilst implementing the
rights and responsibilities detailed.
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34. A number of recent reports stress the importance of digital
preservation in maintaining access to and the usefulness of
electronic documents. It is apparent that;
"Unlike the situation that applies to books, digital archiving
requires relatively frequent investments to overcome rapid
obsolescence introduced by galloping technological change." (16)
Without dwelling on the technical aspects of digital
preservation, a comprehensive solution is not likely to be reached
in the near future. A number of precautions can be taken to reduce
the risk of inadvertently losing access to digital resources, which
include data migration and emulation.
35. Even though individual requirements may differ between
institutions, it is recommended in a report jointly commissioned by
Resource, the Arts and Humanities Data Service (AHDS) and the Joint
Information Systems Committee (JISC), that any deposit licence for
digital materials must consider the following clauses to allow for
future digital preservation efforts (17):
- Permissions needed for copying for the purposes of
preservation.
- Permissions needed for future migration of content to new
formats for the purposes of preservation.
- Permissions needed for emulation for the purposes of
preservation.
36. Currently there is little UK case law to clarify who owns the
separate rights of a digital object derived from originally
copyrighted work. The legal presumption is that if creating the
digital form is a skilled piece of work, then that should demand
protection. Thus, any rights to the new formats should remain with
the original author as defined in the Copyright, Designs and
Patents Act, 1988 ; however any additional value-added
material, e.g. enhanced metadata records, should belong to the host
repository/institution (paragraph 38).
37. The depositing author needs to grant to the host repository a
number of permissions and conditions with respect to online access
to the thesis. In particular it needs to be agreed that any work
deposited will be available to a wide variety of people and
institutions. As not all readers of scholarly information are human,
the author also needs to agree that readers may include automated
agents, for example, web indexing robots, or automated text
processing and data mining methods.
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38. The next significant permission that any electronic thesis
repository requires is to determine the access, distribution,
removal and ownership rights to any catalogue or metadata records
associated with the thesis. Metadata is structured information that
describes, explains, locates, or otherwise makes it easier to
retrieve, use or manage an information resource (18).
Firstly, the repository needs the right to incorporate metadata into
public access catalogues and to determine protocols for the removal
of such records from the catalogues should the need arise. Secondly,
the host repository may wish to claim copyright in any additional
data created during the submission and subsequent archiving of the
thesis. It is common practice for repositories to routinely enhance
simple bibliographic records to provide quality metadata, which
enables the improved search and retrieval of documents to occur.
Examples of metadata enhancement could include the assignment of
Library of Congress subject headings, or the application of rights
management information in the metadata. Such enhancements usually
require the dedicated time of a metadata editor and are often
labour-intensive activities.
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39. It may be desirable for the host institution of a repository
to protect itself legally in case of any future dispute as to the
repository content. The deposit licence should clearly indicate that
the repository is not responsible for any mistakes, omissions or
infringements in the deposited thesis. Furthermore, in the event of
a breach of intellectual property rights, or other rights, in the
material deposited, the repository should not be under any
obligation to take legal action on behalf of the original author, or
other rights holders.
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40. In exceptional circumstances, it may be necessary for authors
to restrict access to the print copy of their thesis for a limited
period. Restrictions may be considered when the thesis is concerned
with topics that are politically, commercially or industrially
sensitive. The precise nature of the thesis embargo time period will
depend on the individual educational establishment's rules and
regulations. Typically such restrictions last for one year and are
extendable for a finite period of time. Restricting a thesis for a
finite period only reflects the desire of most institutions to make
their research publicly available.
41. Because the adoption of electronic theses and dissertations
may substantially increase general thesis reference and use, it is
likely the incidences of restrictions will increase, partly to
protect sensitive data sets from the public domain whilst the author
formally publishes their work, either in a journal article or
monograph.
42. We have identified that complications start when an author
wants to restrict their thesis, even if the restriction is just a
short-term one. The Freedom of Information Act 2000 (FOIA), (in
Scotland the Freedom of Information (Scotland) Act 2002 (FOISA)),
gives anyone a right of access to any information held by an
institution, unless an exemption applies, regardless of who owns the
intellectual property rights in that information. This means that
anyone has the right to see the information held in any format by
any part of the Library, unless refusing access can be justified in
terms of a FOIA, or FOISA, exemption. Thus, it is not sufficient for
the author to indicate that they want to restrict an item; they must
also explain the reason for that restriction in terms of a FOIA, or
FOISA, exemption. Regarding theses, a number of possible exemptions
may apply under the Act including where:
- the material is due for publication, or the author is actively
seeking to publish this material.
- the release of the material would prejudice substantially the
commercial interests of any person.
- the material includes information that was obtained under a
promise of confidentiality.
43. When someone asks to see the restricted material it will be
critical for the institution to have the appropriate supporting
information to enable it to decide whether or not the request can be
lawfully refused. If the restricted material does not have
appropriate exemption information wording then the host repository
is likely to be obliged to release the information to the requester.
Thus, any deposit licence which offers an option to restrict theses
should indicate that supporting exemption wording is required from
any depositor who expects the repository to withhold theses material
when a request to release it is received.
For further information on the Freedom of Information acts and
their application to the work of the education sector please refer
to the information on the JISC Legal Information Service website at
- http://www.jisclegal.ac.uk/.
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44. An End User Licence Agreement is important to clearly define
what rights end users have to downloaded material, for example
reproduction and access, and to remind end users of any restrictions
placed on the item, thereby giving authors/institutions some
protection against plagiarism or changes to the content.
45. Most current use licences for print versions of British
theses are concise. A typical declaration that a user would have to
sign if they wanted to consult, loan or photocopy a thesis is:
"I undertake fully to observe the author's copyright in this
thesis, not to publish the whole or any part of it without the
author's written permission, and not to allow any other person to
use the copy made for me." (19)
46. Similarly, the British Thesis Service supplies each copy of a
thesis with the following statement:
"This copy has been supplied on the understanding that
it is copyright material and that no quotation from the thesis may
be published without proper acknowledgement." (20)
47.a. These user declarations were developed before the
widespread use of networked computing, so may not be comprehensive
regarding the full range of scenarios that may arise from online
access to theses and dissertations. It is recommended that the
approach to the use of copyright taken by the Budapest Open Access
Initiative be adopted. Generous rights for users combined with
content protection for authors and institutions is advocated:
"The only constraint on reproduction and distribution, and the
only role for copyright in this domain, should be to give authors
control over the integrity of their work and the right to be
properly acknowledged and cited." (21)
47.b. To achieve this position it is suggested that the current
solution advocated by the Creative Commons licences is adopted,
specifically the British implementation of the
Attribution-NonCommercial-ShareAlike licence (22),
developed in conjunction with the Programme in Comparative Media Law
and Policy at Oxford University (23).
This gives the user the rights to copy, distribute and display the
work, and to make derivative works, only if the original author is
given credit and the work is used for non-commercial purposes.
Additionally, any derivative work must be distributed under a
similar licence. The licence is flexible, in that any of these
conditions can be waived if permission from the copyright holder is
granted.
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48. So far this document has looked at collecting agreements from
recently completed and submitted theses. However, institutions may
be interested in retrospectively digitising all, or part of, their
thesis collection. If this is the case then similar agreements
previously discussed need to be reached with the author or other
rights holders. A singular exception to this is where copyright may
have lapsed. Copyright in a literary, dramatic, musical or artistic
work lasts for the life of the author plus 70 years from the end of
the year in which he/she died.
49. If no contact can be made with a copyright owner, then
depending on the library's assessment of the risk, it may wish to
proceed without having gained the permission to host the material.
If this action is taken then it is imperative to show that enough
steps have been taken to show reasonable efforts towards locating
the copyright holder, and that the material is for an educational,
non-commercial, purpose. This option, taken at the risk of
infringement, should not be considered lightly and is something that
depends on individual institutional circumstances. Background
information on the practical aspects involved in tracing copyright
holders can be found in two case studies by the AHDS (24).
Even though the case studies highlight tracing rights holders from
different types of materials, the same principles still apply to
theses and dissertations.
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50. The adoption of electronic theses and dissertations in a
university will require a number of alterations to the existing
copyright agreements between the rights holders, usually the primary
author, and those responsible for theses management, usually the
university library. Before entering into any agreements it is
critical to determine who actually owns the copyright to the work as
there are a number of key stakeholders in the production of theses,
including the author, host institution and perhaps the funding
bodies and CASE-partners.
51. Deposit and end-user agreements perform an essential role in
determining the respective rights and responsibilities that users
and institutions hosting digital repositories have with regard to
electronic theses, through creating a formal legal framework by
which each party can abide.
52. In the following appendices a number of licence agreements
are presented, for a range of scenarios, including thesis
deposition, restriction and use. These can be used to replace the
standard agreements sent with digital repository software. The
sample Deposit Licence presented here may be adapted and
used to replace any default licence which is distributed with
repository software packages. The sample conditions of
restriction information (Appendix B) should be presented to the
submitting author only if they wish to restrict access to their
thesis in any way. The End User Agreement (Appendix C) is a
human readable version of the Creative Commons Attribution-Non
Commercial-Share Alike 1.0 Licence. In user-group studies the
full-text legal version of the licence was deemed too long and
inhibitive to be readily understood. It is important that the terms
and conditions of use are understood so it is recommended that the
human readable version is initially presented to the user when
accessing an electronic thesis. It should be made clear that the
terms and conditions of use are a brief version only. A reference
and a link to the full text should be readily available.
The sample Deposit Licence in Appendix A is based upon work from
the TARDis project at Southampton University . Particular thanks are
due to Pauline Simpson and Jessie Hey. Susan Graham, the University
Records Manager at the University of Edinburgh, is thanked for the
assistance in preparing the documentation for thesis restrictions
and the FOIA (Appendix B). This document benefited greatly from
reviews by Leah Halliday and John MacColl. Back
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References
- Theses Alive! project website: http://www.thesesalive.ac.uk/
- Daedalus project website: http://www.lib.gla.ac.uk/daedalus/
- Electronic theses project website: http://www.rgu.ac.uk/library/e-theses.htm
- SHERPA project website: http://www.sherpa.ac.uk/
- TARDis project website: http://tardis.eprints.org/
- RoMEO project website: http://www.lboro.ac.uk/departments/ls/disresearch/romeo/index.html
- JISC Legal website: http://www.jisclegal.ac.uk/ipr/fairdealing.htm
- The University of Edinburgh Postgraduate
Study Regulations: http://www.postgrad.ed.ac.uk/Regulations.htm
- ESRC Conditions of Grant, 19.2.1:
Intellectual property, royalties and income http://www.esrc.ac.uk/esrccontent/ResearchFunding/sec19.asp
- EPSRC Funding Guide: FC 16 Commercial
Exploitation http://www.epsrc.ac.uk/ResearchFunding/HowToApply/FundingGuide.htm
- NERC Knowledge Transfer Policy: http://www.nerc.ac.uk/using/kt_policy.shtml
- The Patent Office website: http://www.patent.gov.uk/patent/howtoapply/index.htm
- Statutory Instrument 1997 No. 3032. The
Copyright and Rights in Databases Regulations 1997: http://www.legislation.hmso.gov.uk/si/si1997/73032--c.htm#12
- Open Archives Initiative: http://www.openarchives.org/OAI/openarchivesprotocol.html
- The University of Edinburgh Transferable
Skills Programme : http://www.scieng.ed.ac.uk/transkills/
- Public Record Office. (1999). Guidelines
on the Management, Appraisal and Preservation of Electronic
Records. Kew : Public Record Office. Volume 1: Principles 4.4. http://www.pro.gov.uk/recordsmangement/eros/guidelines
- Jones & Beagrie. (2001). Preservation
Management of Digital Materials: A Handbook. The British Library.
ISBN 0-7123-0886-5. A web version is available from the JISC
website http://www.jisc.ac.uk/.
- Understanding Metadata, NISO Press, 2004.
ISBN 1-880124-62-9 Available online at http://www.niso.org/
- Edinburgh University Access to thesis
declaration, unpublished.
- British Thesis Service: http://www.bl.uk/services/document/brittheses.html
- Budapest Open Access Initiative: http://www.soros.org/openaccess
- Creative Commons Website: http://creativecommons.org/projects/international/uk/translated-license
- Website of the Programme in Comparative
Media Law and Policy at Oxford University : http://pcmlp.socleg.ox.ac.uk/
- AHDS study: Tracing Copyright Holders.
How two digitisation projects coped with copyright for historical
material http://ahds.ac.uk/creating/case-studies/tracing-copyright/index.htm
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6. Appendices
[Separate Microsoft Word Documents]
Author -
Theo Andrew
After completing his doctorate in Geology/Tectonics at the
University of Edinburgh , Theo became interested in investigating
the role of digital media in enhancing scholarly communication. His
work in the JISC-funded Theses Alive! project helped initiate the
successful electronic theses programme at the University of
Edinburgh . This has led him into a number of related activities,
including, as part of the SHERPA project, investigating policy,
workflow and intellectual property issues in setting up
Institutional e-print repositories.
The right of Theo Andrew to be identified as the author of this
work has been asserted by him in accordance with the Copyright
Designs and Patents Act 1988 (as amended).
22 September 2004
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