Dragon Slaying Part II – More Criticism and Review in Higher Education

Thesis DefendedThis week’s guest post comes again from Mark Summers, who was copyright officer at a UK university for a number of years, before leaving to undertake a PhD (in music). He has a PGDip in copyright law from Kings College London (KCL). This post is part two in a series: the first was theoretical, outlining Mark’s view of fair dealing for the purposes of criticism and review; the second is more practical, looking at the question of post-exam etheses.

Part two: putting post-examination etheses into the repository

I have been on both sides of academic copyright use. As I said in part 1, my time as copyright officer was spent giving advice and training, all the time trying to help members of the university to think about copyright in a helpful way – helpful to both themselves and the university – rather than talking abstract law at them and hoping something would stick. Currently I am a PhD student, so how do I use my knowledge and experience to guard against copyright infringement in my thesis, and how could this help others in their academic work?

Post-exam etheses

I am writing my PhD thesis. When (if?!) it is accepted, I am required to deposit it as an ethesis in the online, open access repository. We’re all familiar with the old examination permission – anything done for the purposes of answering an examination is OK – with the grave warning that this cloak of invincibility disappears when the thesis is subsequently dealt with, exposing us to all of the copyright dragons. The revised version has brought examinations under the fair dealing banner, so we are already a wee bit more restricted (though the risk of copyright holders’ wrath is minimal given that examinations take place within the walls of our academic castles).

So the question is, if academic writing fulfills the criteria for criticism and review in law (see Part 1), why do we worry about the change from examined to deposited thesis?

I believe this worry comes from the exposure of an online repository and the move from (historic) certainty to relative uncertainty, from everything being covered no matter what to the possibility of cover for a (potentially) smaller number of copyright uses.

 

Can we have a more concrete example?

In my thesis then, I may want to quote from a book or article. Whatever I quote is substantial, so I need permission of some kind. Do I need direct permission? I don’t think so as the law gives specific cover for quotation.

Likewise, I may want to include some illustrative examples. I might include a picture that shows an example of what I am discussing. I won’t criticise the picture directly, maybe only giving a namecheck to the thing that is depicted. Is this ok? I would say yes, assuming that I have properly cited the source.

What about a musical score? Sure, it should be fine to include excerpts of the score in the text to illustrate a point in a convenient manner for the reader. However, what I wouldn’t do is, say, include an entire score as an appendix – if the reader wants all of it then they should find a copy for themselves.

So are there no problems with any thesis?

By chance I came across an example of a potential problem as the thesis moves from examination to dissemination. There is a growing number of ‘practice-as-research’ PhDs. Potentially these could contain work that may reuse existing material in a way that would make me hesitate about whether a straight transfer to a repository is OK.

The example in question is of “Sound maps for the dreamer” https://www.sonospace.org/sound-maps-for-the-dreamer-open-call/ The idea is to match sounds with existing maps. They say, “Maps from the 1970s seem to be very good aesthetically… If you like it and we like it then it has the potential to be part of the project”.

I say, “hold on a moment!” My immediate feeling is that there is no obvious fair dealing approved purpose here – the use of a map from the 1970s is problematic, given the recent creation date. Also, the electronic image may have its own copyright.

If a thesis included maps used in this way, then I would proceed with caution. As it is much less clear that the inclusion of the potentially (probably?) infringing artwork as part of the criticism of it in the thesis would be covered by law, I would probably end up advising the author to ask for permission from the copyright owners.

In a nutshell

In my opinion, if we are writing in a suitably academic way (smallest quotation necessary, properly cited) then we are covered by the permissions given to us in law.

Following this, post-exam ethesis advice to PhD students could be less restrictive.

N.B. as in part 1, this is an opinion piece, not legal advice. You may wish to consult your institutional policy before changing your approach.

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