What is third party copyright?
Use of copyrighted images in your thesis falls under ‘fair dealing for the purposes of illustration for instruction’ educational use, if the requirements of this copyright exception are met, including as long as they are not used purely for illustrative purposes. Submitting your thesis for assessment in hard copy therefore shouldn’t be a problem. However, when you deposit your thesis in Apollo this counts as further distribution and the fair dealing exemption for educational use no longer applies. The recommended course of action is to remove any copyrighted images from the digital version of your thesis prior to upload and include a note in place of the image. Researchers wishing to view the image can request a hard copy from the library.
The University’s guidance on copyright includes a special section about requesting permission from copyright owners (see Information Sheet 1). If you have consulted these guidelines and are still uncertain about what permissions are required, please contact the Open Access team for further assistance.
What is 'fair dealing for the purpose of criticism or review’?
Fair dealing with a [copyright] work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement unless this would be impossible for reasons of practicality or otherwise and provided that the work has been made available to the public. (s. 30(1) Copyright, Designs and Patents Act 1988 (CDPA))
What constitutes 'fair dealing'?
First of all use of third party material must be ‘Fair’. That means: not systematic and not conflicting with the rights of the copyright holder or affecting their ability to benefit from the work. There is no set amount of material allowed or forbidden but the use cannot be systematic or excessive. Do not rely on wordcounts. You must always make proper acknowledgment to the original copyright work. The criticism or review must directly accompany or run concurrently with the quotation, extract or excerpt of the work being criticised or reviewed.
The third party material used must be discussed in the context of criticism or review, this is an essential component providing a justification for fair dealing. There is no legal definition of criticism or review but it’s likely that there would be a fairly liberal interpretation by the Courts. Mere illustration or ‘window dressing’ is ruled out. A good question to ask is whether your work would stand up if the material was deleted? If so, it is unlikely to be for criticism and review. For example, use of material for an epigram would not be fair dealing. This defence can only be used in United Kingdom law in conjunction with published works. Permission is always required if you wish to modify or make changes to the third party material because all authors have moral rights under European law.
How much can I use?
The UK Copyright Service answers the question 'How much of a work can I use under fair dealing?' by saying: "There is no simple formula or percentage that can be applied. You may have seen figures like ‘up to 10%’ or ‘no more than 400 words’ quoted in some publications, but such figures are at best a rough guide and can be misleading. What is acceptable will vary from one work to another. In cases that have come to trial what is clear is that it is the perceived importance of the copied content rather than simply the quantity that counts. Judges hearing such cases often have to make an objective decision on whether the use is justified or excessive.”
However, custom and practice in academic publishing suggests that quotations of prose from a single copyright work for the purpose of criticism or review could be fair dealing if not greater than 400 words in a single quotation, or up to a total of 800 words in a series of short quotations, none of which is longer that 300 words.
According to the journal Ecology guidelines - “Authors are responsible for obtaining permission to reprint a previously published table, figure, or extract of more than 250 words and for submitting written permissions with their manuscript.”
The general Wiley page says: “Fair use or fair dealing (depending on the country whose laws apply) allows use of a copyrighted work for the purposes of criticism or review. This extends to quotations that form part of book reviews and other critical material. Permission to quote is not required in such instances, provided the extracts are not substantial and are genuinely required for the purposes of review or criticism. For works of shorter length, such as songs, permission to re-use shorter extracts may be required. All sources must be credited – title and author at minimum – in order for fair dealing to apply.”
Elsevier say: “As a general rule, written permission must be obtained from the rightsholder in order to re-use any copyrighted material.”
SAGE say: UK law provides that copyright will not be infringed by ‘fair dealing’ but it does not define what ‘fair dealing’ itself means. It has come to be interpreted as referring to the way material is used, as well as the intention of the person using it. However, use of third party material must qualify as fair dealing for a particular purpose. There are a number of these purposes specified in UK law but the most relevant one for us is Fair Dealing for Criticism or Review.
Reuse of own publications
If you wish to include academic papers or other content you have authored that has already been published you need to check if the publisher will permit you to use them. During the publishing process you will have signed a "Transfer of copyright agreement" or equivalent. This should indicate whether or not you have rights to reuse the article in your thesis. If the agreement does not mention reuse then the publisher should be contacted in order to acquire appropriate permission. Please note that many publishers have different policies on use of articles for inclusion in these than for self archiving purposes as indicated in the Sherpa Romeo database. It is therefore recommended that the publisher is contacted directly.
What if permission is granted?
If a positive response to your permission request is received you should include details about this at the appropriate place in your work, e.g. "Permission to reproduce this [details of content ] has been granted by [ rights holder information] ". Letters or emails confirming permissions should be kept secure and made available for consultation if any questions relating to rights were to be raised.