Law Stack Exchange is a question and answer site for legal professionals, students, and others with experience or interest in law. It only takes a minute to sign up.
Sign up to join this community
I am a PhD student and I was recently told that unless I publish the content of my dissertation, my university will not be able to freely conduct research in the same research area after I graduate. This is because I will supposedly be the only one who can make derivative works from the dissertation.
I was quite startled by this and I was wondering if it is true?
This sounds completely incorrect to me. First, subsequent research is not normally a "derivative work" for the purpose of copyright, since copyright doesn't protect your ideas but only the particular form in which you have expressed those ideas.
Second, as the owner of the copyright, you can permit anyone to make any sort of copy or derivative work, or sell, assign, or license the ability to do so to other parties, without regard to whether the work has been published.
The real reason that nonpublication of your work would stifle further research is that researchers will not have access to it.
Copyright in a dissertation is no different from copyright in any other work. It protects against copying the work without permission, in whole or in part (if in excess of any fair-use or fair-dealing limits). It protects the right to prepare derivative works, such as translations. It protects the right to be identified as the author and receive proper credit. It protects the right to distribute copies of the work. There are some other rights, which are less relevant to a dissertation than to, say a play (the right to publicly perform, for example).
However, subsequent research based on the ideas put forward in a scientific paper is not a derivative work. Properly attributed quotes from such a paper, of the kind normally made in other such papers, are usually within a fair-use or fair-dealing exception to copyright. And if they were not, they would not be allowed whether the first paper was or was not published, unless the author of the first paper granted permission.
Also, the author of a paper may grant permission to use it, including to quote it or to make derivative works, as the author sees fit, whether or not it is published.
The normal reason for insisting on the publication of a dissertation is because it is supposed to be a contribution to scientific progress, and it does not serve that role if others cannot access it, learn from it, and use it to build upon. But none of that is a matter of copyright, nor does it bar further research if the paper is unpublished, lack of publication merely denies others the benefit of the work already done. Conferring that benefit is supposed to be part of what a dissertation is about, as I understand it.
All of the above should be true in any country that adheres to the Berne Convention. While copyright terms and procedures differ between countries, these basic rules are set by Berne, and therefor now apply in all but a handful of countries.
It's not true at all. Somewhere along the line, somebody has got confused. I strongly suspect that the original story is "unless you make your dissertation widely available, nobody will know what you did, so nobody will be able to build upon it" and that this has been corrupted through multiple retellings, à la Chinese whispers.
Ironically, if you do hide your dissertation in a filing cabinet, the only people who will be able to build on it are you and people you worked with, such as your advisor. In other words, if you don't make your dissertation widely available, it's people in your university who'll be the only ones who can work on that material, not can't.
Your question is confusing as you appear to be conflating two distinct concepts.
The first concept is publication, or the wide dissemination of your dissertation. If you didn't publish your dissertation, then nobody could use your words, or even your ideas, because they wouldn't know what those words or ideas were. Publication is required for research to enter the body of public knowledge that everybody can use. If you don't publish it, you might as well burn it for all the good it would do the rest of the world. It still, of course, might do you a whole ton of good because you used it to show that you deserved your PhD.
The second concept is copyright. Copyright is typically about restricting what others can do with your words and owning a copyright on your work makes it harder for other people to build off of it, though not impossible. Copyright typically only affects a specific expression of an idea. If someone else expresses the same idea with different words, copyright doesn't prevent them from doing so.
In the United States, you are automatically granted the most restrictive possible copyright on anything you create. You then negotiate with various parties to allow them to make copies of what you made, usually in exchange for some sort of compensation. There are some interesting wrinkles here like "works for hire", but that's basically how it works.
Derivative works are tricky in copyright, and it depends a lot on the nature of the original and the work based on that original whether or not the new work will be considered derivative.
For example, most Harry Potter fan fiction would be considered a derivative work of J.K. Rowling's original story. Her characters are covered by a rather amorphous blob of protection.
But an academic paper with significant new results would not generally be considered derivative of a different academic paper that it used as a base or jumping off point. Conversely, an academic paper that had nothing new or significant in it that copied large sections of a different academic paper might be considered plagiarism, and would be a copyright violation. Similarly, a book review that quoted a few select sentences or maybe even a paragraph of the book it was reviewing wouldn't be considered a copyright violation unless the review consisted almost entirely of quoting the book and added little or no commentary of its own.
This sort of use of another work in a new creative work falls into an area of copyright law called "fair use". Fair use is a very tricky area of copyright law, as what is and isn't fair use tends to be up to the discretion of a particular judge or jury. And it is also strongly affected by the general standards of the particular area of creativity that is being judged.
So, in short, copyright is largely irrelevant to whether or not other academics can use your work. The standards of academia over time would play a large role and most judges would decide that any use that wouldn't be considered academic plagiarism would be considered fair use.
But, publication is very relevant to whether or not other academics can use your work.
By conflating them, it sounds like your school is trying to pull some kind of fast one.
My guess is that they want you to publish in a journal that requires you to sign over your copyrights to them with no compensation. Then the journal can charge other academics huge sums of money to read your work and you will see none of this money. And additionally, you may no longer even be permitted to even put the work up on your own personal website. In my opinion, this is a terrible practice, and flies in the face of academic tradition. It makes it really hard for people like me, a person who doesn't have expensive journals paid for by their academic institution, to read your work at all.
I would ask for details, and demand that your work be published in an open access journal. But, of course, maybe you don't care, or think that plebs shouldn't be allowed to read your work. I have my opinion on this, obviously, but yours may be different, and hopefully this answer helps you understand your options even if you don't want to do things the way I suggest.
Another test is to see how they respond to the idea that you will put the paper up on a web site with a creative commons attribution required, derivatives allow, no commercial profiting without your permission sort of license. There you are very explicitly allowing derivative works.
The research complications may be in the area of patents rather than copyright. As I understand current US law, if inventor A publishes ideas, 1 year after the publication, the person can't claim any patent based on the published idea.
If the inventor A does not publish the ideas, inventor B who knows about the unpublished ideas of inventor A cannot file for a patent on the ideas, pretending the ideas belong to inventor B. So what if inventor B comes up with an improvement to inventor A's ideas. How does inventor B write a patent application describing inventor A's prior art so that B's improvements can be understood? It would certainly be more straightforward if A's ideas had been published.
Copyright (violation) is loosely analogous to plagiarism, an academic fraud of which I am sure you are familiar.
One cannot copyright concepts or ideas; only the expression (words/drawings) of them. Similarly it is not plagiarism to arrive at those same concepts or ideas; what is plainly plagiarism is copying how one expresses them.
If I write a thesis, and copyright it (which happens automatically under current law)... And then you tear a whole chapter out of my thesis verbatim, because you're in a hurry... Then you are guilty of copyright infringement. Obviously, you are also guilty of plagiarism; the difference is the latter has rank and reputation consequences within academia, and the former has (mostly financial) consequences outside the ivy walls.
In copyright violation, the financial consequences matter tremendously. For instance, copying my thesis would probably have little or no commercial value, so I would have weak basis for claiming money damages. You could actually make a defense that I have no chance of proving money damages, and thus, the case should be dismissed. I would have trouble justifying to a judge why this case is worth the space on his docket. I could sue to compel or restrain, however; that is a reasonable reason. And alternately, we could come to a mutually cheerful settlement: you pay me $2000, this goes away, heck, I could even license my work for $2500 and it would now be completely legal for you to use it.
Plagiarism does not work like that, to say the least! Can you imagine extorting a fellow student $2000 to keep him out of an accusation of plagiarism? Or selling a chapter of your thesis for $2500?
In the academic world, the goal is to advance human knowledge. If I develop an idea, academica wants you to pick up on that idea and take it further. So refining and extending my work would never be plagiarism or any other type of misconduct.
Whereas outside the ivy walls, the view is that if I invented an idea, I ought to have dibs on its commercial exploitation, so long as it does not stifle competition too badly. Copyright doesn't do that; other things do, such as patents, trade secrets, NDAs, EULA reverse-engineering clauses, and the like. There are also elaborate games played with patent busting, cross licensing, spinoffs, you name it. Can you imagine that happening in academia?
