JISC

Joint Facilitators: Paul Ayris and Professor Charles Oppenheim  

Combination strand between the legal issue strand and eThesis strands outlining legal issues surrounding ethesis, followed by audience participation and concluded by a summing up session.

Overview

• Putting e theses into a repository means that the HEI becomes an publisher
• This raises a number of legal risks: defamation, breach of confidence, infringement of privacy, breach of Data Protection Act, pornography, contempt of court, incitement to racial or other harassment, terrorism, etc. – and IPR!

IPR Issues raised in more detail, which need to be cleared if thesis is digitised:

• Who owns the copyright in the thesis and therefore needs to grant permission for digitisation to occur? This is most likely to be the student – although there may also be other circumstances where it may not be, such as the role of the commercial sponsor. (Incidentally, a similar question applies to patent rights)
• Who owns the rights in computer-generated works? This would be owned by the person who did the arrangement for the computer-generated work.
• Moral rights – the rights of the author to object to derogatory treatment
• Database rights – data collected and verified for research
• Performance rights – if thesis to do with a play, performance, dance. This is another raft of rights that needs to be dealt
• Who has the right to insist on embargoes?  (Perhaps for confidentiality or other reasons). These can be time based, content based or both. Specific chapters might be embargoed, for example.

Key IPR Issue: Incorporation of third party material into the thesis, and requirements for separate clearances if works are digitised

• Not a problem for the original thesis, because of exceptions to copyright in the CDPA 1988 for “examination purposes”, but problems arise for digitisation projects because that exception no longer applies to the digitised version, as thesis is no longer be made available for the purpose of examination
• They MAY also fall under the exception for “criticism or review”, but this is not certain and depends on a case by case basis.

Risk Management:

• Need to take a prudent approach, but not be excessively risk averse
• Equally, one must not ignore the problems because they will not go away
• In my view, best approach is a combination of: robust notice and take down process; sums of money put aside, or insurance, to settle claims; and avoid obviously reckless approach. Do not ignore complaints!

 

Scenario 1: A third party rights owner complains that you (student) have used material in your thesis without permission. What action should you take?

Discussion 1:

• Need to be aware of the immediate impact: such as panic and/or obliviousness
• Need to ensure that we give guidance to students and find out what was the policy of the HEI/FEI and perhaps who caused this to be published
• Need to disseminate support to students and academic staff so that they know what they are doing and also monitoring processes. Need to have a clear policy. If HEI has a clear requirement that all thesis put in a repository and copyright is dealt with.
• How did thesis get so far without clearance?
• Part of research skills training for students – but also copyright and IPR for further careers
• Need to provide information but also sources of content
• EthosNet tookit – pro-formas, template clearance letters etc
• Depositor agreements warrant that there are no third party rights – but this might be unfair
• What if a student asks for permission and charges are too high or permission refused? In this case, for examination content can be included – but for digitization, then third party content could be removed or put in separate copy.
• Can anyone look at a thesis – but if this is then photocopied and used for other purposes then there are issues here

Scenario 2: Your Institution has traditionally claimed copyright in student work.  In a digital environment, what would you, as copyright officer, advise the University to do?

Discussion 2:

• Reference to recently published JISC Legal Report on Student IPR  - deemed to be unfair practice if HEIs insist that they own the copyright as terms and conditions of entrance to HEIs. HEIs need to change their policies accordingly. Ought to be an explicit policy that HEIs do not own copyright, but thesis submitted to repository and copies can be made available. NB: Student IP policy written by UCL – took about 3 years for sign off. All available on UCL website www.ucl.ac.uk also includes forms and licences etc.

 

Scenario 3: A PhD student has collected a large amount of primary data in her research.  Can third parties use that primary data for their own research or teaching?

Discussion 3:

• Issues surround ownership of primary data
• Issues might also include confidentiality and data protection, database rights etc
• Need to ensure that agreements are put in place, before data is collected with regards to what is done with the data subsequently.
• Would Ethics Committee need to approve this type of work, but it depends on the nature of the research. In some situation, data cannot be collected until Ethics Committee has signed it off and in some situations they may impose embargoes.
• Students might include statement in PHd that this can be reused
• Moves towards to depositing data

 

Scenario 4: You want to develop a licence agreement for when PhD students deposit their thesis in your repository.  What should the licence say?

Discussion 4:

• True copy of thesis
• There is no third party rights issues
• HEI can make it accessible and other thesis services, preservation and visually impaired persons
• Money going back to student
• Respect students moral rights
• Non exclusive aspect
• Ensure future proofing licences to allow for of text/data mining and similar systems
• Licences to cover administrative purposes
• Implications for Pilot Licence Project – convert licences into ONIX for licensing terms and therefore students licence could be picked up as machine readable

 

Scenario 5: You want to engender a culture of respect for copyright and patents, and an understanding of how they affect PhD students. How should you train PhD students in patents and copyright issues?

Discussion 5:

• Some institutions run training that would cover copyright, plagiarism, training sessions for supervisors etc
• Post graduate skills programme, and need to include copyright within basis skills training.
• Supervisors need to meet with students and discuss issues and sign them off

 

Scenario 6: A student uses photographs of museum objects in her thesis. Can these then be deposited in the repository along with the full text? Does it maker any difference if the student took the photos herself, or if she bought them from the museum shop?

Discussion 6:

• Not necessary if museum has a restricted photography policy
• May be more than one right in artefact, for example sculpture etc. The student has copyright in photograph but infringes copyright of third party.
• If museums own photo used, then have to abide by museums own terms and conditions of supply
• Quality of image may be a factor. E.g. putting art work into thesis and repository and working with third parties (e.g. derogatory treatment)
• Criticism and Review exception is untested

 

Scenario 7: Some scholarly publishers refuse to publish material based upon a PhD thesis if the thesis has been deposited in a repository. How could you counter their position?

 

Scenario 8: What permissions need to be in place for you to retro-digitise a paper PhD thesis currently held in the Library?  What would you do if you can’t obtain the necessary permissions?

 

Key issues:

1. Acknowledging role of students in their ownership of IPR and ensuring that policies reflect this
2. Recognizing long term role for thesis, for example digitisation and putting in place suitable strategies according, such as clearance of third party rights, risk management etc
3. Ensuring that third party rights are suitably dealt with, the interaction with other legal issues and that there may be rights within rights are thesis are born digital and may include multi-media components etc
4. Consider long term aims for thesis and ensuring that licences are future proof – such as available in machine readable code, include clauses to permit data and text mining etc
5. Provide support and guidance for students and staff

Who: Supervisors, institutions, EthosNet, JISC Services, JISC Projects, National Rep, such as JORUM, institutional repositories

What: Training, guidance, templates, standard statements, procedures, policies, checklists etc