Copyright for researchers

If you're using work created by someone else, you'll need to consider your right to use that work, and you may need to seek permission to use it.

Intellectual property

Intellectual property (IP):

is a broad term that describes the laws which protect certain products of peoples’ imagination and creativity
is intangible property
is an ‘economic’ right.

The main forms of IP include:

Copyright
Patents
Designs
Trade marks
Circuit layouts
New plant varieties
Confidential information

The Intellectual Property Regulations provide the framework for management of intellectual property at Victoria University.

Library

Find resources and referencing guides, and get librarian support.

Library

Copyright law

Copyright law gives a legal framework for the use and management of a range of works, including text, artistic works, dramatic works, musical works, films, broadcasts and published editions. Copyright gives you, the owner, exclusive rights to:

reproduce
publish in print or electronic form
perform the work in public, and
communicate to the public and adapt or modify their work.

As the copyright owner, you can transfer any or all of these rights to users or a third party. Generally copyright lasts for 70 years after the death of the creator or 70 years after the first publication.

Victoria University's Copyright Policy provides a framework for university staff and students for using third-party copyright material for educational and research purposes.

General information about copyright can be found at the Australian Copyright Council website. The ACC provides Factsheets on a range of topics such as Copyright and Research, moral rights, duration and the law regarding use of third party copyright or using material such as logos etc.

Moral rights

These are rights linked to copyright but are not transferable to another person or body. Only individual copyright owners can have moral rights (corporations or organisations cannot have moral rights). In addition moral rights:

are personal legal rights belonging to the creators of copyright works and cannot be transferred, assigned or sold.
ensure that the creators of works are correctly attributed for their work.
ensure the works are not treated in a derogatory way.

General information about moral rights can be found at the Australian Copyright Council’s website.

Fair dealing for research & study

While writing your thesis you can rely on fair dealing exceptions for the use of works for research and study. Fair dealing does not cover copyright material in research papers for publication, presenting at conferences or making them available online, such as for open access. Once the thesis is published this exception no longer applies to the third party work used in the thesis. Permission will be required unless you use an ‘insubstantial portion’ of the copyright work, such as a relevant quotation.

Under fair dealing for text you can reproduce

10% or one chapter (whichever is greater) of literary, dramatic or musical works.
Journal articles – one article per journal or two articles from the same journal if the articles are for the same research.

Artistic works, unpublished material, films and sound recordings, including music do not have the same 10% provision. To use these materials and to use more than 10% you will need to consider whether the use is fair and reasonable. The criteria for this determination are as follows:

Can this item be bought at a reasonable price within a reasonable time?
How much do I need to copy?
Why am I copying?
What effect will this have on the ‘normal exploitation’ or value of the work?
How will this use affect the copyright holder’s rights?

Fair dealing also covers uses for criticism and review and parody or satire if you are genuinely producing a critique, review, satire or parody of a work. The use must be ‘fair and reasonable‘. There is no limit to the amount of the work you can copy but it must be considered ‘fair and reasonable’.

Ownership & permission

If a work is created as part of the author’s employment role, for example as a teacher at Victoria University, then copyright will be owned by the employer, namely the University. Generally the creator is the copyright owner and they have the right to control the use of the work unless bound by a contract which assigns copyright to another party such as a publisher. An author can also give exclusive rights or non-exclusive rights to another party.

When completing a thesis or research article, candidates must ensure that they have permission to use any third party material within their work. Before publishing researchers or students should check their rights within a publishing contract – they may wish to seek legal advice in order to negotiate terms and conditions which allow them future access and use, for example to review and edit chapters.

: The original creator of a work is called the “author” although in the common vernacular the word is used to identify the person who wrote something such as a book, paper or article. In copyright law the term is used to identify the creator of any work. For example, a sculptor, artist or photographer would be an “author” of their work.
“If copyright is assigned or transferred to a second person or entity, that person does not become the author, merely the new rights holder. The original author always retains that status or description”
(Copyright for Librarians, (n.d.), Creative Commons licence).
Under the Moral Rights law the author has rights to acknowledgement and integrity of the work that cannot be assigned, altered, or renounced.
: Two or more persons can collaborate in the creation of a work in different ways. Copyright ownership in such works follows different rules according to the degree to which the individual contributions can be distinguished within the final result.
When the contributions made are merged into an inseparable or interdependent unit, we speak of ‘joint works’ or works of collaboration. For example when two authors join together to write a book it becomes a collaborative work.
In the case of joint works, the contributors are considered co-authors who jointly own the rights in their creation. As joint owners they must generally exercise their rights together. The co-authors may not unreasonably refuse to give their consent for the exploitation of the work. Unless otherwise contractually stipulated, profits are distributed in equal parts.
Joint works are to be distinguished from ‘composite works’ which term is used if two or more pre-existing works are linked to a new creation without losing their individual character. For example, when music is written to pre-existing lyrics, and thus a song is created, both the music and the lyrics may be used separately from the song, without affecting the rights in the new ‘composite’ work.
While the rights in the new work (the song) are held jointly, copyright in the individual contributions (the music and the lyrics) continues as a general rule to belong to the respective creators, subject to any specific contractual agreements.
A ‘collective work’ merely assembles several contributions without amounting to a joint work. Some examples are periodicals, anthologies and encyclopaedias as well as databases.
(from UNESCO’s ‘The ABC of Copyright, 2010, Paris: page 24).
Though the contributions in this case are separate and discernible, they are often undertaken at the initiative of someone who plans, arranges, coordinates, prepares and publishes the collection (often called the ‘editor’). It is therefore generally recognised that, without prejudice to the copyright in the individual works, there is separate copyright in the whole, which is usually vested in this person or legal entity.

Employers, works for hire & researchers

According to the common law legal tradition, when an employee produces a work in the normal course of his or her employment, the employer is regarded as the initial owner of copyright, and hence considered the author, unless there has been an express agreement to the contrary, such as giving the employee a non-exclusive licence to use their work at another institution or as part of their portfolio of work.

Works made for hire are any works produced in the course of employment, including leave and if created using any equipment belonging to the employer.

If in doubt, please contact the Copyright Officer at [email protected] .

Using copyright material

When writing your thesis or work to be published you may wish to include material from other sources. When using other work you will need to check the copyright status or look for ‘out of copyright’ and ‘copyright free’ works. There are several categories of ‘free’ works available for your use such as covered by a Creative Commons licence or Open Access material.

You can use an insubstantial portion which can be a few lines or sentences from another source, such as a book or a journal, which is acknowledged; a short film clip or a snippet from a sound recording may also be used without permission if acknowledged. A quote from another source can be considered an ‘insubstantial portion’ and will not require permission.

Whether something is ‘insubstantial’ depends on quality and quantity and the Copyright Act does not define exactly what qualifies as an insubstantial portion. Sometimes even a short film clip if it gives away the plot will be considered substantial and will require permission.

: When including work created by another person or organisation in your published thesis or other work to be published, you will need to seek permission unless the work is out of copyright or is freely available such as under a Creative Commons licence or Open Access.
: Under Creative Commons (CC) authors or creators can choose how they will allow people to use their work, whether for commercial or non-commercial purposes and whether they can adapt, change, modify work and create derivative works or mash-ups.
The most common CC licence is the CC- BY which has the condition that the work is attributed to its author or creator and can be used by others under the same conditions without seeking permission.
In some cases, you will be given an option to ‘share-alike’ which means any derivative work using the CC material must be licensed under the same terms.
General information about these open licences is available from Creative Commons Australia or more specific information about applying a Creative Commons licence to your work is available on the "Using a CC licence or licenced material" page.
: Open Access material is available online for the purpose of research and study. The full text of works is available online for downloading and printing for research and study but it will still be subject to copyright if you wish to reproduce for publication.
: Search Creative Commons allows you to search for freely available material such as images and other media that can be included in your thesis or work to be published.

Internet & social media

It is important to check the terms and conditions of use or copyright statements when accessing material (including images) on the internet. Not everything on the internet is free for further use.

Linking rather than copying is recommended when using digital material from the internet. When using third party material, such as videos from YouTube, check whether the “embed” option is available as this allows you to embed the work using an ’implied licence’.

: Users or contributors own copyright in their original work
Material may be used under ‘fair dealing’ provisions but permission is required to publish or present the work at a conference.
When setting up a site for collecting research make sure you have included terms and conditions for users so that they are informed about how the material will be used and giving an ‘opt out’ choice.
Terms and conditions on any of the above sites are legally binding.

Publisher agreements, contracts & licences

As copyright owner you have the right to reproduce your work, publish it in print or electronically, make it available online and communicate it to another person by email or fax, and perform it in public, adapt it and broadcast it.

Moral rights are retained by the author even if the copyright has been assigned to another party. The author must still be acknowledged and credited as the creator of the work. Work should not be falsely attributed as this is a breach of the law. If your work has been produced on behalf of your employer or you have been commissioned or hired to do the work then the copyright resides with the employer but you will still have moral rights to that work.

Publishing Agreements will generally detail the time limit of the agreement or whether it can be terminated. An irrevocable perpetual agreement means that it is permanent and will last indefinitely. Once an agreement expires you can enter into a new agreement.

Publisher agreements are often standard agreements, particularly for journal articles or books but this does not mean that you cannot change the terms and conditions to suit your requirements. (see the addendum link below). Before signing any agreement make sure you have it checked by a legal officer or lawyer and always keep a copy so you can check on your terms and conditions at a later date.

Most academic publishers require authors to transfer copyright to the publisher which will restrict the ability of the author or the University to make a copy of any published works available online, including as part of a PhD with associated papers (by publication) thesis. It is important that any researchers and PhD candidates retain full and complete copies of their final versions before publication of all articles, as in some cases these can be included in the online version of their thesis.

If a publisher does not allow any version of the article to be made available online, it may only be possible for the University to include URL links to the articles that form part of the thesis in the digital version of the thesis. Access to these articles may then only be made via a subscription to the journal, so the full thesis will not necessarily be available to all users.

All candidates or writers should scrutinise their publisher agreements and policies so that they can gain future access to their work. They should also consider asking publishers for permission to include their article in an online version of the thesis and retain copies of all agreements.

: A contract can be an agreement with specific terms between …an author (or authors) and a publisher …in which there is a promise to do something in return for a valuable benefit known as a consideration.
A contract requires finding the following elements:
an offer
an acceptance of that offer which results in a meeting of the minds
a promise to perform
a valuable consideration (which can be a promise or payment in some form)
a time or event when performance must be made (meet commitments)
terms and conditions for performance, including fulfilling promises
performance.
: The verb licence or grant licence means to give permission.
Licence = noun ie. You can use your driver’s licence for identification
License = verb ie. You are licensed to drive (You are allowed to drive)
A licence may be granted by a party ("licensor") to another party ("licensee") as an element of an agreement between those parties.
A shorthand definition of a licence is "an authorisation (by the licensor) to use the licensed material (by the licensee).”
A licensor may grant a license under intellectual property laws to authorise a use, such as copying a work to a licensee, sparing the licensee from a claim of infringement brought by the licensor.
Another shorthand definition of license is "a promise by the licensor not to sue the licensee." That means without a license any use or exploitation of intellectual property by a third party would amount to copying or infringement. Such copying would be improper and could, by using the legal system, be stopped if the intellectual property owner wanted to do so.
: Some of the more usual types of licence or permission documents used by authors or publishers include the following.
Assignment of copyright
This means that you assign all rights to your work to another party such as your publisher. If you wish to deposit your work in the university open access repository, make it available online or provide copies to colleagues, you will need permission from the publisher.
It is usually permanent unless the agreement states otherwise. If you assign your copyright to a publisher it means they can, at their discretion, enter into agreements with other parties to use your work. Your publisher could enter an agreement to include your work into a database; it also means that if you later wish to re-use or edit the work you will need permission from your publisher.
Exclusive licence
An exclusive licence means you retain copyright but grant your publisher certain rights over your work for the term of the agreement. These rights can include the right to publish, communicate and distribute online and to sublicense. These rights are given only to the publisher, or whoever is named on the licence agreement, and you cannot give them to anyone else during the term of the agreement.
Non-exclusive licence
This licence is similar to the exclusive licence but allows you to also give the same rights to other parties as well. This type of licence can sometimes be referred to as a ‘permission’ to use or reproduce because the copyright owner is allowing another party to use their work for a certain purpose or purposes.
Addendums
Using the SPARC Author Addendum can help you secure some rights as the author of an article.
If you wish to add your thesis to the university repository where it is made accessible but you have included published articles which have been assigned to the publisher but are a part of the thesis, then you may need to use the addendum to retain some rights for including your work in the repository.

Presenting at conferences

Any research paper presented at a conference, symposium, public forum or lecture given as a researcher or student will require you to manage the copyright.

You will need to get permission for the use of any third party material in your presentation and you will need to manage your copyright in your original work.

If the conference presenters wish to publish your paper or presentation they will need to seek your permission and you may be asked to sign an agreement. You should read any agreement carefully as you may be required to place an embargo on your publishing the material presented. It is your responsibility to ensure that you are not breaching any confidentiality agreements, privacy or the terms of your funding agreement.

When presenting in another country you will need to ensure that you are not infringing any copyright laws of the country where the conference is held. It is always wise to check with the conference organisers as to what your copyright obligations may be and how they will treat your work for any further publication.

Research data

Whether research data is subject to copyright will depend on how the data is defined. Ideas are not protected by copyright unless they are expressed in material form. Raw research data may not necessarily be covered by copyright.

If data or statistics were expressed in in a table or graph then the table or graph would be in copyright. Increasingly raw data is being more broadly defined to include any raw information that is used as part of the research process. In this sense research data can be made up of photographs, interviews (both recorded as film or sound or transcript), surveys, questionnaires, field notes, laboratory notebooks, sound recordings or films. This type of material would be protected as all other films, sound recordings or literary works.

Research data may also be protected under other forms of IP such as patents or confidential information.

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