Third Party Copyright Guidelines


Application


Postgraduate students at the University whose degree includes a thesis or dissertation

Purpose


To provide guidelines on inclusion of third party copyright works in a thesis or dissertation which will be published or communicated to the public by way of the internet or live exhibition/performance

Background


  • While you are permitted under the Copyright Act 1994 to copy another person’s copyright work (third party copyright) and include this copy in a live, printed or digital format with your thesis for the purposes of examination, this exception does not apply if you publish or communicate your thesis to the public by way of the internet or live exhibition/performance
  • If your thesis is to be deposited as a digital copy into ResearchSpace it becomes a commercial publication under section 11 of the Copyright Act because it has been posted on the internet and made available to the public 

Content


  • Where permission is required
  • Where permission is not required
  • Copyright has expired
  • Copying under licence
  • Fair dealing for criticism and review
  • No copyright
  • Copying permitted
  • Collaboration
  • Commissioning
  • Joint ownership
  • Obtaining permission

Guidelines


Where permission is required

  • Prior written permission from the copyright owners to allow your thesis to be made publicly available is required in situations where:
    • a whole work is copied - a poem, diagram, chart, graphic or image is considered to be a whole work and is not just a part of the publication from which it has been taken; or
    • a substantial part of a work has been copied – a copy of a part of a work is considered substantial if it represents the essence or an important or significant part of that work; or
    • you have collaborated with another person to create a copyright work which is jointly owned; or
    • where you have permission to use a work for one purpose (for example, a performance) and you now wish to include a recording of that work in your thesis i.e. the permission does not cover the use of the work for another purpose

Note: Works on the internet are likewise protected by copyright

  • Copyright owners include the publisher of your own work if you have assigned copyright to them or granted them an exclusive licence to publish

 

Where permission is not required

  • You do not need the permission of the third party copyright owner if:
    • copyright has expired – 50 years from the end of the calendar year in which the author dies (section 22)
    • the third party work copied or used is not protected by copyright – see “No copyright” below
    • copying is permitted under the Act – e.g. abstracts of scientific and technical articles (section 71); buildings and sculptures on public display (section 73); literary or artistic works relating to medicines imported by the Crown (section 76)
    • use clearly falls under one of the fair dealing exceptions in the Act such as fair dealing for the purpose of criticism and review (section 42)
    • the author has made the work available under a licence which permits the use you intend to make of the work  
  • Before you rely on any of these exceptions to copy a work without permission of the copyright owner, you must read a fuller explanation of permitted uses of the above which is set out below
  • Where you are copying or using another person’s work you must fully attribute those copyright works or you will be in breach of the original author’s “moral rights” which are protected under the Copyright Act - see the University’s Authorship Guidelines and Copyright for Staff and Students for further assistance

Copyright has expired

  • Material in which copyright has expired may be copied in full and dealt with freely
  • Under current New Zealand law, the duration of copyright varies depending on the type of work protected. Note that if you intend publishing articles or a book overseas based on your thesis you may need to get permission to use work which is in the public domain in New Zealand, as in many other countries including Australia, the United States and Europe, copyright expires 70 years following the death of the author
  • The duration of the term of copyright is as follows:
    • Literary, dramatic, musical or artistic works remain copyright protected until the end of the period of 50 years from the end of the calendar year in which the author dies (section 22)
    • Sound recordings and films remain protected for 50 years from the end of the calendar year in which the film is made or made available to the public whichever is later (section 23)
    • Communication works remain protected for 50 years from the end of the calendar year in which the work is first communicated to the public (section 24)
    • Typographical arrangement or copyright in the layout, typically a published book or journal, remains protected for 25 years from the end of the calendar year in which the work was first published. Thus, new copyright protection attaches to each new typographical arrangement of a work; so that material contained within a new typographical arrangement of a book is subject to the copyright protection the book enjoys. That work may not be copied or dealt with unless it is done so under a licence or with the express permission of the rights holder, normally the publisher (section 25)
    • Works of unknown authorship – if it is not possible to ascertain the identity of the author by reasonable enquiry, copyright expires 50 years from the end of the calendar year in which the work is first made available to the public and you may freely use the work
  • DigitalNZ has created an easy reference guide “Copyright terms and the public domain in New Zealand”, for anyone wanting to know what was out of copyright in New Zealand as of 1 January 2011

Copying under licence

  • Works posted on the internet are protected by copyright. Unless the author has clearly stated that you are permitted to copy the work and post it on the internet then you may only copy that work to the extent permitted under the Copyright Act 1994
  • The author may also make a work available under a licence such as a Creative Commons licence. Creative Commons licences allow creators (licensors) to retain copyright while allowing others to copy, distribute, and make some uses of their work providing they give the licensor credit for their work
  • Creative Commons offers 6 main licence types. Provided the licence permits you to copy the original work and distribute it online, you may include that work in your thesis

Fair dealing for criticism and review

  • Fair dealing means a use which is reasonable. There is no clear formula for the amount which can be copied for the purpose of criticism and review. This will depend on the particular circumstances of the use. The courts have held that the following factors will determine whether or not a use is fair:
    • the number and extent of quotations and extracts from the work copied – too many quotes, and quotes which are too long, are unlikely to be considered fair
    • whether the proportion of the work quoted or the number of images copied is more than is necessary to criticise or review the work – long extracts and short comments will not be considered fair
    • the degree to which the use competes with the work copied, so, for example, if the use would reduce demand for and affect sales of the work copied
    • in some instances whole works may be copied – for example, if a work of art or a short poem was being criticised or reviewed
    • a court would be less likely to consider that copying for criticism or review is “fair” if a work is unpublished and not in the public domain or widely distributed
    • the copying must be for criticism, but need not be of the work criticised or reviewed. It may be permissible to copy a work for the purpose of illustrating certain points in relation to the work being criticised
    • criticism may extend to the ideas underlying the work
  • Any works copied under this provision of the Act must be accompanied by sufficient acknowledgment. This means the work must be identified by its title or other description and by its author unless the work has been published anonymously or it is not possible by reasonable enquiry to ascertain who the author is
  • Most publishers require authors to obtain permission before including a work in a publication rather than rely on the uncertainty of this exception. The exception is a defence to an action for breach of copyright rather than a right

No copyright

  • Under section 27 of the Copyright Act no copyright exists in any of the following New Zealand works which may be copied freely:
    • Bills and Acts of Parliament
    • Regulations and Bylaws
    • Reports of Select Committees
    • New Zealand Parliamentary Debates
    • Judgements of any New Zealand court or tribunal. Note: Head notes are protected by copyright and may not be copied without permission
    • Reports of New Zealand Royal Commissions, Commissions of Inquiry, Ministerial Inquiries or Statutory Inquiries
  • This does not extend to legislation, judgements or reports from outside New Zealand

Copying permitted

  • Under the Copyright Act the following works may be copied without infringing copyright:
    • abstracts of scientific or technical articles accompanying an article in a periodical indicating the contents of the article (section 71)
    • buildings and sculptures permanently on public display may be drawn, photographed or filmed (section 73) – this does not extend to copying someone else’s graphic image, photograph or film of a sculpture or building on public display, as a separate copyright will exist in the graphic image, the photograph or film itself, which will belong to the artist, photographer or filmmaker
    • text or images relating to a medicine imported by the Crown and published overseas by the copyright owner (section 76). For example copying a photograph published overseas of a medicine imported by PHARMAC or a DHB would not breach copyright in the photograph

Collaboration

  • If you are intending to include a video or a sound recording of a performance in your thesis there may be a number of different authors who will each own copyright in different aspects of the performance and the recording
  • Copyright law protects not only the work of the traditional authors of literary, musical or artistic works, but authors such as:
    • in the case of computer generated literary, dramatic, musical, or artistic works, the person by whom the arrangements necessary for the creation of the work are undertaken
    • in the case of a sound or video recording, the person who undertakes the necessary arrangements for the making of the recording and the person who undertakes the editing or the compiling of recordings into a final output
    • in the case of a communication work, the person who makes the communication work
    • performers, whether they be actors, musicians, dancers or others who have deliberately contributed through their presence within the performance/exhibition or recording
    • costume and set designers, choreographers, dramaturgs or others who have deliberately contributed concepts and conceptual materials to the performance/exhibition or recording
  • You will need to have permission from each of the “authors” before you can include a film or a sound recording of a performance in your thesis before it is posted in ResearchSpace
  • Each of the “authors” will also retain copyright in their own performance and that copyright will be infringed by a person who, without the author’s consent, makes a recording of the whole or any substantial part of a performance and communicates that recording to the public. Posting your recording of a performance in ResearchSpace without the author’s consent will be a breach of copyright

Commissioning

  • Under current New Zealand law, unless there is an agreement to the contrary where you commission and pay or agree to pay for, the taking of a photograph or the making of a computer programme, painting, drawing, diagram, map, chart, plan, engraving, model, sculpture, film or sound recording and the work is made as a result of that commission, you will be the owner of copyright in that work and you can use the work as you please. If you are commissioning someone to create a work for you, you must check any written agreement you are asked to sign to ensure that you retain copyright
  • The commissioning rule does not apply to literary works or musical works, so if you have commissioned someone to produce music or text for inclusion in one of your works you will need to ensure that copyright in the work is either assigned to you in writing or is licensed to you to enable you to include it in your thesis and post it in the University’s digital repository
  • If you are not paying for the work and the creator is gifting the work to you, then to be an effective assignment, the work will have to be assigned by way of a deed. This means the assignment must be signed and the signature must be witnessed. A nominal sum is generally sufficient consideration
  • In summary, where you are commissioning and paying another person to produce a work which will form part of your submitted thesis you will own the copyright in that work unless it is a musical work or a literary work. If you do not own copyright then you must ensure that you have a licence to use that work, or that the copyright in that work has either been assigned or licensed to you

Joint ownership

  • A work of joint authorship will arise, if you have collaborated with one or more persons to jointly create a work. For it to be a work of joint authorship, the contribution of each author is not distinct from the other authors
  • If the work is a work of joint authorship you will own the copyright in that work jointly with that person or persons. This means you cannot copy or publish that work without the written permission of your co-author(s)

Obtaining permission

  • Obtaining permission to use a copyright work requires that you enter into an agreement with the rights owner(s) of that work. This agreement must give you the right or licence to use the work
  • Getting permission requires you to undertake the following steps before your thesis or dissertation can be placed in ResearchSpace:
    • Determine that the work is protected by copyright
    • Identify the rights owner(s)
    • Contact the owner(s) and negotiate whether payment is needed and
    • Get each permission in writing
  • If you are unsure whether you need to obtain written permission you will need to check with the University Library, or your supervisor or academic head may be able to assist you. A draft letter which can be used for approaching copyright holders for permission is provided below
  • If you have been unable to obtain permission to reproduce material, you may consider placing that material in a separate section of your thesis which can then be suppressed from public view or the whole text of the thesis can be suppressed. Consult with the ResearchSpace administrator for more information on these options

Sample Letter


Dear [insert name of owner or authorising person]

I am a research student in the Department of [name] at the University of Auckland. I am writing up my research in a [thesis/dissertation] entitled [title of thesis/dissertation].

I am seeking permission to utilise the following copyright material in my [thesis/dissertation] for the purposes of examination and subsequent deposit in the University of Auckland’s publicly available digital repository, ResearchSpace:

 

·        [Insert description and source of material for which permission is sought].

 

If you are happy to grant permission, please sign the authority at the bottom of this letter and return a copy to me. You may also add specific instructions regarding the attribution statement that I will include in my [thesis/dissertation], and any additional terms and conditions that you require.

If you wish to discuss the matter further, please contact me at [insert email address] or telephone [insert number].

 

Thank you for your consideration of this request.

 

Yours sincerely

[Name]

 

Permission

I, as copyright owner (or the person with authority to sign on behalf of the copyright owner) of the material described above, grant permission for [name of student] to copy the material as requested for the stated purposes, with no further action required.

Signed:  ……………………………………  Date:  …………………………

 

Attribution statement

 

Please note any specific instructions you would like included in my acknowledgement of copyright ownership:

 

Terms and conditions

Please note any terms and conditions of the permission:

 

 

 

 

Definitions


The following definitions apply to this document:

Academic head is the head of the academic unit in which the candidate is registered

Artistic work means (i) graphic work, photograph, painting, sculpture, collage, or model, irrespective of artistic quality; or (ii) a work of architecture, being a building or model for a building; or (iii) a work of artistic craftsmanship (section 2, Copyright Act)

Commercial publication in relation to a literary, dramatic, musical or artistic work, means the publication of the work consisting of - … (b) making the work available to the public by means of an electronic retrieval system; section 11, Copyright Act)

Communicate means transmit or make available by email or on a learning management system or by means of any other type of communication technology, including by means of a telecommunications system or electronic retrieval system (section 2, Copyright Act).

Communication work means a transmission of sounds, visual images, or other information, or a combination of any of those, for reception by members of the public, and includes a broadcast or a cable programme (section 2, Copyright Act)

Dramatic work includes (a) a work of dance or mime; and (b) a scenario or script for a film (section 2, Copyright Act)

Literary work means any work, other than a dramatic or musical work, that is written, spoken, or sung; and includes (a) a table or compilation; and (b) a computer programme (section 2, Copyright Act)

Musical work means a work consisting of music, exclusive of any words intended to be sung or spoken with the music or any actions intended to be performed with the music (section 2, Copyright Act)

Postgraduate students are those candidates enrolled in any postgraduate degree at the University which includes a thesis or dissertation

Publish means issue of copies of the work to the public, including by means of an electronic retrieval system such as the Internet (section 10, Copyright Act).

Substantial part means an important or significant part of a work

University means the University of Auckland and includes all subsidiaries
 

Document management and control


Owner: Dean of Graduate Studies

Content manager: School of Graduate Studies

Approved by: Dean of Graduate Studies

Approval date: July 2015

Review date: July 2018