Part I: On the Need to provide accurate copyright information to ETD Authors

In a recent workshop on copyright and publishing for science graduate students here at Texas A&M, participants were asked who owns the copyright in their theses or dissertations. Only a minority of students (19%) correctly identified themselves as the copyright owner of their graduate works, suggesting that ETD authors suffer from some pretty fundamental copyright uncertainty and confusion.

This example illustrates just one of the many points of copyright confusion and uncertainty among graduate students today. Other questions raised in this (and most other copyright and publishing workshops here in Aggieland) range from “How to copyright a work” to “Who owns the copyright in a jointly-authored article derived from a student’s dissertation.”

ETD Authors express uncertainty about:

• which copyrighted materials are okay to include in the ETD;
• when they need to ask permission to include copyrighted materials in the ETD;
• why they are expected to pay a third party (e.g., ProQuest) to “copyright” their work;
• who owns the copyright in an article when the research was funded by the government;
• & many more topics to boot!

If our students are to manage their research and scholarship effectively, they need a clear understanding of copyright and publishing principles. And if they are to clear their ETDs through the Graduate School in a timely manner, they need accurate information about copyrights and publishing issues at every point of contact with ETD professionals.

Why are our ETD authors so uncertain and confused about copyright and publishing? Well, a (admittedly) non-scientific study of ETD guidance documents on the Web today provides some clues. The fact is that many Grad Office websites , university catalogs, and Library guides are purveying myths and misinformation about copyrights and copy wrongs. Furthermore, this misinformation is being supplied by well-meaning and trusted authorities, exacerbating grad student confusion and insecurity about their author rights and responsibilities. The ubiquity of inaccurate copyright information for graduate students is, IMO, alarming.

We ©an do better.

This posting presents the most commons areas of (c)opyright confusion among ETD Authors, and provides facts to clear up the myths. Welcome to We Can Do Better, Part I. A future posting — We Can Do Better, Part II – will provide resources and tips about excellent and accurate copyright and publishing education for ETD. Please stay tuned.

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Copyright Myth #1. ETD Authors must do something to get their works protected by copyright.

Take the following guidelines to ETD authors posted at the website of a particular Office of Graduate Studies (all examples provided in this posting are current and authentic, but have been anonymized)

Similar to these instructions are those proffered by another graduate school in their Guide for Formatting and Submitting Doctoral Dissertations and Master’s Theses:

And this graduate school of dentistry must have taken their copyright guidelines from the same playbook:

Less-than-accurate instructions such as those above mislead students into thinking that they have to *do something* to secure copyright protection for their ETDs. And the misinformation coming from universities is further aggravated by publishers, however unintentionally, as demonstrated on this FAQ page from a commercial ETD distributor:

FACT #1: A U.S. thesis or dissertation is “under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.” [Source: US Copyright Office, Copyright in General, http://www.copyright.gov/help/faq/faq-general.html#mywork]

Copyright Myth #2. Only works carrying a copyright notice are protected by copyright.

Moreover, the university guidelines shown above mistakenly equate placement of a copyright notice with the act of copyrighting a work. In fact, a work is copyrighted without presence of a copyright notice.

FACT #2: US Copyright law has not required use of a copyright notice on copyrighted works since March 1, 1989. Copyright works without a copyright notice are protected under US law. However, the copyright notice is often recommended “because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if a proper notice of copyright appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages”. [Source: US Copyright Office, Copyright Basics, http://www.copyright.gov/circs/circ01.pdf]

Copyright Myth #3a. Registering a work with the US Copyright Office is the same as copyrighting the work.
Copyright Myth #3b. Using the services of ProQuest is necessary to registering a copyrighted work

Another common point of confusion among ETD authors concerns the process of registering a copyright work with the US Copyright Office. Registering a copyrighted work is not the same thing as copyrighting the work, but the two concepts seem to be used interchangeably by well-meaning yet confused ETD professionals. The tendency to link copyrighting, registration and ProQuest’s copyright registration services give credence to the pernicious myth that the commercial ETD distributor is somehow qualifed or responsible for protecting a student’s copyright. This is just not true!

It may be useful to ETD authors to know about the optional service that ProQuest provides to act as the student’s agent in submitting copyright registration paperwork to the US Copyright Office. But it does our graduate students a great disservice to mislead them into believing that ProQuest is eligible to register US copyrighted works, or has an exclusive role as agent for the copyright registration process. Their service is entirely optional, voluntary and non-exclusive.

Below are a few real-life examples illustrating how copyrighting and copyright registration are oft confused in advice to ETD authors:

FACT #4: Copyright registration for US works is handled exclusively by the US Copyright Office. Students are able to register their theses and dissertations directly via the Web for a fee of $35. [Source: http://www.copyright.gov/help/faq/faq-register.html] Students may also choose to use the services of an agent willing to submit their copyright registration to the US Copyright Office for an additional fee. Such agents are in no way affiliated with the US Copyright Office and are offering these services as a convenience to their own customers.

Copyright Myth #4. Including excerpts or all of a copyrighed work in the ETD requires permission, unless the amount used is less than <fill in the blank>

The last point of copyright confusion among ETD Authors, and some of the professionals advising them, relates to the inclusion of other people’s copyrighted material in the ETD. It is fairly common to find copyright advice cautioning students to always secure permissions before including any third-party copyrighted work in their ETD. Understandably, such advice may be offered to minimize the risk of copyright infringement for the institution or the publisher. But a permissions-are-always-required approach also poses significant risk to the integrity of the ETD author’s research, if s/he feels the need to remove critical content because permission can’t be secured. Students are often legally allowed to reuse copyrighted material in their ETD’s without permission under the provision of Fair Use, an important section of US Copyright law (US Code, Title 17, Section 107).

Examples of misleading advice concerning copyright permissions is found on various university webistes, such as the following:

FACT #5: Using copyrighted material to support one’s research argument in a thesis or dissertation (e.g., to illustrate a point, support an argument, etc.) is likely to fall under Fair Use when the amount used is justified by the purpose of the use. There are no numeric cutoffs or guidelines in US Copyright Law that limit how much of a work may be included. [Source:Association of Research Libraries, Code of Best Practices in Fair Use for Academic and Research Libraries, http://www.arl.org/storage/documents/publications/code-of-best-practices-fair-use.pdf ]

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The examples shared above illustrate the types of copyright misinformation and myths that our ETD Authors encounter in their course of their graduate school experience. In We Can Do Better, Part II we’ll look at some great examples of excellent, accurate and user-friendly copyright materials available for our ETD Authors today.

The practice of applying temporary access restrictions to ETDs was a hot topic of debate at the recent joint conference of the Texas ETD Association and US ETD Association, Region 3. Keynote speaker David Carlson, Dean of the Texas A&M Libraries, took up the question in his presentation “Myths and Value in the Deposit of ETDs: A Final Teachable Moment”. The underlying premise of Dean Carlson’s thesis was that free access equates with immediate access, therefore rendering embargoes as anathema to the principles of Open Access. Most of the ETD professionals in the audience seemed to agree.

The Dean opened his argument against ETD embargoes with data from Texas A&M, where students have the option to release the ETD immediately, with a two year publishing hold, or with an indefinite patent hold that is expected to expire within two years. As the pie chart below indicates, two-thirds of Aggies delay online dissemination of their ETDs for up to two years.

Dean Carslon paused to ask the audience if the local trend was unusual, and the majority response was affirmative, punctuated with commentary along the lines of: “It’s not that bad at my institution” and I’ve never seen anything like it.”

To underscore the point that local embargo rates are too high, the speaker then showed a slide comparing local embargo rates with those of a peer institution. The comparison implied that Hoosiers whip Aggies when it comes to providing open access to their graduate scholarship.

While most ETD professionals in the room echoed the anti-embargoist views of the Library Dean, a minority few were uneasily maintaining silence, the bubbles over their heads reading “So what? What’s the big deal?” As one of those skeptical few, I felt a rush of gratitude when a neighboring colleague bravely spoke up: “But within two years the institutions look the same. All ETD’s are available.” The new bubble over my head? “Yeah, what she said. “

So what is the beef with a time delay in ETD availability? What embargo rate is okay? Just how much of a dissemination delay is acceptable? And who exactly is injured by temporary access restrictions to a graduate student’s work? In other words and in aggregate, exactly what problem do ETD embargoes represent?

The question “What’s the Beef with ETD embargoes” seems to demand an answer before any reasoned debate about ETD embargoes can go forward. To date, not much data is available to address this question. In the anbsence of concrete data about legitimate embargo needs, a common anti-embargoist response is to point out that embargoes are unnecessary because we know that most publishers do not, in fact, refuse to touch ETD’s already disseminated online. But that argument presumes that the only reason for embargoes is fear of losing a publishing opportunity once the graduate student work has found its way to the Internet.

What if the student or the advisor had other reasons for placing the embargo? As pointed out on the UC Berkeley Graduate Division’s “Dissertation Filing Guidelines (for Doctoral Students)” ,

Occasionally, there are circumstances in which (the author may) prefer that (his/her) dissertation not be published immediately. Such circumstances may include the disclosure of patentable rights in the work before a patent can be granted, similar disclosures detrimental to the rights of the author, or disclosures of facts about persons or institutions before professional ethics would permit.

And Berkeley isn’t the only school recognizing the varied reasons for embargoing an ETD. Indeed, some attendees at TXTEDA conference offered embargo stories from their own campuses, including the case of an international student concerned with exposing people back home to retribution if information contained in the ETD was released to the world too soon. Another ETD professional recalled having to re-embargo an ETD in the repository because of a legal dispute. And from Texas A&M, yours truly shared the experience of being asked several times a semester to re-embargo an ETD in the university repository for a variety of reasons, including post 9/11 security concerns imposed by an outside agency.

Take away message #1: Perhaps we should take the time to understand WHY embargoes are needed before jumping to an Open Acess-enthusiast’s conclusion that they are unnecessary or too long.

Take away message #2: If there are legitimate rationales for embargoing a work, it would make sense to assess the duration actually needed and accommodate that need, rather than apply randomly devised embargo periods.

Do these pleas to reconsider ETD embargo policy make this blogger “Pro-embargo”? Absolutely not. I am the first to defend the legitimate concern, from an educational and information access perspective, that unnecessary embargoes threaten to deny access to vital information that scholars, students and others could benefit from. I agree with the words of Dinham and Scott, writing about dissertation dissemination practices in the Journal of Further and Higher Education:

“A key issue for the individual, the institution and society generally is the extent to which the knowledge and expertise gained through the doctorate is disseminated.” [Source: The Experience of Disseminating the Results of Doctoral Research, vol. 25, iss. 1, 2001].

Yet I also recognize that there may be good reasons for temporarily delaying access; that the duration of ‘temporary’ may need to remain flexible based on facts on the ground; and that the ultimate decision on embargo placement may best be made by those stakeholders carrying the greatest risk of premature dissemination. If the world of embargo policy positions must be divided into camps, I guess that makes me ‘Pro-Choice.’

Do you have data on the reasons your students are placing embargoes on their ETDs, or what duration of the embargo is needed to meet the student’s need? If so, please share them here, or SOMEWHERE, so we can begin to understand “What’s the Beef with ETD Embargoes.”

A provocative new critique of Open Access theses and dissertations is already causing quite a stir within the ETD community. “Closing the Deal: Coercion, Ethics and the Enthusiasms for Open Access” [1] accuses the confederacy of American university administrators, academic librarians, and graduate school personnel with nothing less than graduate student oppression by wantonly distributing theses and dissertations freely over the Internet. The authors — each a Humanities faculty member on a Texas campus — lay 26 charges at the feet of the American ETD community. The alleged offenses range from “cajoling, arm-twisting and even coercing students into .. surrendering the copyright to their dissertations and theses” to biasing ETD formatting guidelines to “stack the deck in favor of OA.”

In their wholesale disapprobation of the ETD community, Hawkins, Kimball and Ives take no prisoners, also censuring:

1. the Association of Research Libraries, accused of encouraging its membership to sell OA to their university administrators using manipulative tactics befitting a high pressure salesman;
2. the commercial dissertation distributor, ProQuest LLC, who allegedly circulates misleading advertising materials erroneously claiming that dissertations are peer-reviewed; and
3. the non-profit academic consortium, Texas Digital Library, for carelessly releasing embargoed dissertations in disregard for their respective authors’ express wishes.

In assailing the pernicious practices of Open Access zealots, the authors of “Closing the Deal” convey considerable cynicism about the intentions of the accused. The authors consider the tone of ETD policies across the country to be “patronizing.” They decry the “selfish motivations” of academic librarians who must resort to populating their otherwise-vacant digital repositories with the low-hanging fruits of student research. And they chastise university administrators for misleading students to “give away their work,” encouraging publication of OA ETD’s “in order to polish their institutional reputations.” Apparently, in the disapproving eyes of Hawkins, Kimball, and Ives, no one in 21st century academe is immune from the scourge of blind and misguided reverence for the cause of Open Access, save the poor students themselves and perhaps a handful of their enlightened faculty advisers. Given such a seething indictment of American ETD policies and practice, who among the OA ETD community would not take offense from the words of Hawkins, Kimball and Ives?

Well, for one, the author of this blog is not offended. Rather, I am grateful to these authors for disturbing the apparent calm and unwarranted complacency in the scholarly communication community. I see this controversial article as a fortunate opportunity to question unexamined assumptions about our ETD publishing practices. The critically important issues of embargo policy and enforcement at the heart of “Closing the Deal” warrant vigorous discussion and debate. Additionally, the authors’ concern for balance and reason in discussions about scholarly publishing is one I have articulated publicly myself, sometimes at risk of reputation among esteemed colleagues in library scholarly communication circles. Hawkins and her colleagues echo my fear that we librarians may be sacrificing our hard-won trustedness as disinterested information intermediaries in the dizzying rush to herald the Academic Spring. Giddy with finding new validation for our (too long) under-appreciated values of open information access, might we be getting a bit buzzed from too much OA Kool Aid? The admonitions of Hawkins & Co. about ideology’s threat to academic freedom and diversity of choice at institutions of higher learning also resonate with me, even as the responsibilities of my scholarly communication assignments have me marketing OA journals requiring generous CC-BY licenses that I myself prefer to avoid. And finally, I applaud the willingness of these authors to take their fight fearlessly to the heart of the accused’s lair — a highly-ranked, peer reviewed academic library journal that is written, reviewed, and read by the best in the business. Bravo, Hawkins, Kimball and Ives, for your equanimity toward the ETD community. May the responses to your charges be as vigorous and fearless as the JAL article that provokes them.

Yet please understand that this wholehearted appreciation for “Closing the Deal” does not equate with wholesale acceptance of its arguments. Indeed, among the 26 charges made in the article, I emphatically dispute ten of them because of serious gaps in logic and shortcomings in preparation. The subset of unsubstantiated charges in “Closing the Deal” reflects a misunderstanding of copyright principles and an ignorance of the historical underpinnings of American dissertation practice that would seem alarming in university faculty and graduate student advisors. For a reasoned discussion of OA ETDs to take place across campus, our faculty clearly need more education. Moreover, the authors’ gross mischaracterization of librarian’s motivations in encouraging access to materials held in their care reflects a poor understanding of the sanctioned mission of these well-credentialed professionals. The insensitive choice of words, presumably selected more for dramatic effect than for rhetorical precision, are reminiscent of the debates at mid-19th century when new technologies for microfilming and the looming prospect of a major copyright revision threatened those clinging to literary property rights in library-held manuscripts. From such times, one finds charges of librarians’ “promiscous” lending practices and naive disregard for authors literary property rights, borne out of the age-old fear that opening access would lead to literary theft and misuse [2]. How regrettable that, in their courageous efforts to elicit the serious attention of librarian readers, Hawkins, Kimball and Ives have undermined the strength of their arguments with careless gaps in research and almost laughably parodic hyperbole.

Nonetheless, the two-dozen plus charges hurled at the American ETD enterprise in “Closing the Deal” demand a serious response. One is now in preparation, but will take some time to complete. To advance a productive discussion of OA ETD policy and practice (rather than merely escalate the debate for no productive purpose) the response must be thorough in its claims and sharply focused in its counterclaims. Supporting arguments must be grounded in evidence and reason. And any defense of Open Access within the context of graduate works must consider both the promise and pitfalls of this emerging mode of scholarly publishing, while also demonstrating sincere appreciation for students’ rights, values and needs. In short, anything less than equanimity toward the complex issues surrounding Open Access ETDs would be a dishonor to our graduate students and the world’s new scholars, and a discredit to their critically valuable contributions to the wealth of human knowledge.

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[1] Now online as a preprint, but appearing officially in the March 1 issue of the Journal of Academic Librarianship), The Journal of Academic Librarianship, Available online 17 January 2013, In Press, Accepted Manuscript.
Please cite as:
Ann R. Hawkins, Miles A. Kimball, Maura Ives, Closing the Deal: Coercion, Ethics, and the Enthusiasms for Open Access ETDs, The Journal of Academic Librarianship, Available online 17 January 2013, ISSN 0099-1333, 10.1016/j.acalib.2012.12.003.
(http://www.sciencedirect.com/science/article/pii/S0099133313000025)

[2] See for example: Horn, Andrew H, “The University Archivist and the Thesis Problem,” The American Archivist, Vol. 15, No. 4 (Oct., 1952), pp. 321-331.