[Update] I’ve now had additional advice regarding fair dealing (fair use in the US), so see the foot of my article for a note on this.
Most UK universities now require successful doctoral candidates to deposit an electronic copy of the thesis in addition to a printed copy. This is a recent development. My university has only made this compulsory for students who began their Ph.Ds after October 2009. However, as most students who are submitting now will have begun after 2009, most will be turning in a copy that will appear online. An electronically-available thesis is considered a ‘publication’ in the eyes of the law, as the document is available to download and view by all who are able to access the repository. Many universities now make these repositories entirely open access. However, while theses are increasingly open access, the images that might act as source material are often not. Herein lies a problem for aspiring postgraduates.
When the students of the past were submitting print-only dissertations, securing permissions from libraries for electronic distribution rights was not as crucial as it is today. It was good practice to acquire permissions for image reproduction in advance, out of politeness, and because the Ph.D might be adapted subsequently into a book. Your life would be made easier, in the long run, by obtaining permissions sooner rather than later. However, it might have escaped the minds of Ph.D students who submitted a printed copy to acquire rights for reproduction, since their work was only likely to be seen by library visitors, or – at the most – by someone viewing a photocopy. However, the new rules mean that theses are much more widely available. This is undoubtedly a good thing in terms of the sharing of learning and understanding. However, it does pose problems for students. Firstly, as I have mentioned, it is important to be aware, when compiling images for illustrative or explanatory purposes in your thesis, that you must – at the same time – ensure that the library or owner will allow online distribution of these images. This can be costly, in terms of both time and money. Many depositories will grant these permissions for free, especially for postgraduate students. However, this should never be taken for granted. The permissions process can take months, so it is important to avoid scrabbling around doing this in the months preceding the final upload. In addition, online access can be tricky for students who plan to adapt the thesis into a monograph or series of articles. You may not want everyone to be able to view your work, at the click of a button, immediately after your viva. Luckily, it is often possible to place an embargo on your thesis for a number of years.
If you, like me, are a palaeographer or manuscript scholar, or are an art historian, these issues will be of especial interest. I hope that university departments are giving new students clear guidance on this issue. If so, I will be preaching to the converted. Indeed, I see that advice is freely available on many university websites. However, since the final thesis often comes together as a series of chapter drafts, which are shared only between student and supervisors, it is possible that students will not think of their legal responsibilities from the outset. In addition, I think the issue is confusing, and intimidating. I also question whether, as we move into a world where visual material can be tweeted, and re-tweeted, to thousands of people within seconds – perhaps without too much thought of who owns ‘the original’ – we might be becoming less mindful of our responsibilities. Whether or not this kind of online sharing is affecting our perception of copyright, it is still an important issue in scholarly publication.
Thus, copyright, I feel, may affect the planning of some students’ theses. To give a hypothetical example, if your research were on the work of a particular scribe, who wrote the letter ‘E’ in a distinctive manner. You may wish to include ten images of his letter ‘E’ to prove your point. You may find examples of this letter in digitised manuscripts in ten different libraries. Acquiring permissions to reproduce these ten images might be very costly, or very cheap, depending on the kindness of the manuscript curator at each of these libraries. Either way, obtaining permissions will take hours of your time. Having recently acquired permissions for just one image, which required a string of emails, plus a lot of paperwork, I know that this could be prohibitive to Ph.D students, whose lives are busy enough with researching and writing the thesis.
Having done a quick survey of different universities’ policies regarding copyrighted material, I’ve found that some will consider allowing you to upload a version of your thesis with images redacted, if you have not obtained the relevant permissions. Some universities state that if removing the images from your thesis will render it unusable, they will ‘consider other options’. This is likely to involve you submitting two printed copies, and withholding your thesis entirely from the internet. This is undesirable, since online access to your research improves your academic presence. The best option is to make a template letter for requesting images and send a letter off to the library off every time you decide to use an image.
One possible alternative would be to craft a thesis based on what illustrative material is already free to download (or photograph yourself) and reuse. The British Library’s Catalogue of Illuminated Manuscripts is a good example. The images in the catalogue are available on a Creative Commons CC0 1.0 Universal Public Domain Dedication. This means that not only Ph.D. students are welcome to use and reproduce them, but that if I were to design and sell a range of greeting cards, I could do so.
It means that I can put this image here:
Without sending three emails, a printed form, and possibly a cheque, to the British Library. This is good for me, good for other scholars reading the blog, good for public understanding of the past, and good for the British Library. Luckily for the Ph.D. researchers of the future, many libraries are following in the footsteps of these open-access pioneers. Other notable examples are the Walters Art Museum, the Wellcome Collection and the Getty open content programme. I hope that many more follow, as I do not think it is enough to allow us access to images, without the potential to reproduce them, freely, to support our arguments. As William Noel said, with a twinkling academic eye:
“…you used to restrict the use of your books to try and make money off reproductions in other books. It was expensive, but it wasn’t crippling. Today these copyright restrictions are now crippling scholarship and access by the general public. The other thing is that a lot of these collections are in national institutions, university libraries, and they are the prized cultural heritage of these institutions. The policymakers in those institutions don’t like the idea that reproductions of these images can be available for free. It feels to them like you are denigrating your greatest asset. That’s a state of mind that belongs to my grandfather — for whom I have great affection, but to whom I don’t listen much anymore.” (http://blog.ted.com/2012/05/29/the-wide-open-future-of-the-art-museum-qa-with-william-noel/)
For now, however, I would recommend that all postgraduate new starters, and indeed those who are mid-way through, set aside time in their research timetable for taking care of bureaucracy, before it gets too much. Academic life is increasingly full of administrative tasks, so it is probably ‘good practice’ in both senses of the word. I really hope that more repositories will take a serious bite into open access. In the meantime, it is up to us researchers to take care of our business.
[update] Big thanks goes to Alaric Hall for pointing me towards the ‘Fair Dealing’ rules for the reproduction of copyrighted material (‘fair use’ in the US). As a result of reading more on this issue, I’m putting in an addendum to my article.
Fair dealing is an exception to copyright law for the following purposes: research and private study (both must be non-commercial), criticism, review, and news reporting. This implies that the use of an image in a thesis should be legitimate. However, this rule is still massively confusing. For example, the University of Exeter states:
‘what is acceptable for personal educational use under ‘fair dealing’, such as inclusion of images or extended text extracts in an unpublished thesis or paper becomes immediately illegal if that document is subsequently made publicly available electronically’
‘….you may wish to include images from printed sources within your thesis or dissertation. This is possible under the exemption. Some issues may arise if your thesis is then made available online, please refer to http://www.ucl.ac.uk/library/e-theses/ for further information on this.’
Looking at this page, indeed, it suggests that the electronic availability of the thesis is outside of the boundaries of ‘fair dealing’:
‘Traditionally it has been accepted that copyright material can be included in the print version of a thesis without the permission of the rights holder. However, this is not the case if the thesis is going to be made available online. ‘
Again, from Brunel University:
‘You must also obtain permission to include third party material in the final version archived in a public-facing open access repository. Examples of content that would require permission include company documents, film clips, images or music scores. This is because in UK copyright law, the copyright owner has the exclusive right to control the reproduction or dissemination of their work in electronic format to the public, while print dissemination may be covered by statutory exceptions in the Copyright, Designs and Patents Act 1988, under fair dealing.’
What about if you take the image yourself – do you not own the copyright then? The University of Sussex points out that you do, unless the rights to the material you are photographing is owned by someone else. So, does this apply to a document you are photographing in The National Archives? It’s best to ask, in my opinion!
As the University of Leicester points out, in its ‘Keeping Your Thesis Legal’ guide, fair dealing is ‘not clear cut’. It seems pretty likely that a doctoral student’s use of an image would be deemed, by a sensible person, as ‘fair use’ – since the fair dealing rule implies that material under it should ‘not harm the copyright owner by nevertheless benefits either the individual or society generally’ (Graham Cornish, 2009, p.18) However, with online publication, this becomes a little more complicated, as the advice from the University of Exeter suggests.
It’s a mire. Most universities are advising that students request permissions for every image, and do not assume that the image will be allowed under fair dealing. They recommend that you keep copies of every request made, and try – as far as is possible – to get written permission for every image that is protected by copyright.