Scholarly Communication Services : Copyright

Fair use

In our Copyright basics section, you learned that copyright grants a set of exclusive rights to the author for a limited period of time. 

In order to make use of a work protected by copyright, you either need permission from the copyright owner, or your use needs to fall under an exception to copyright, such as fair use.

If you follow the below guidance and determine that your use is a “fair use,” then you do not need to get permission from anyone to reproduce, distribute, or display the copyrighted work. (i.e. If your use is a “fair use,” then you don’t need permission to use the material in your research or scholarship, or for a digital project, etc.) 

If you intend to use copyrighted material in a way that exceeds fair use, then you will need to get permission from the copyright holder for your particular use. We explain how to get permission if you determine that you do need it.

What is fair use? 

Fair use allows limited copying or use of copyrighted works without having to seek the copyright holder's permission, when the use is for purposes such as teaching, research, scholarship, reporting, criticism, or parody. Fair use is a part of the U.S. Copyright law, codified in Title 17, Section 107.

You need to evaluate each work that you intend to use according to the decision-making factors identified below, examining your use against the four factors described. When considering these factors, keep in mind that the fair use exception is purposefully broad and flexible to promote academic freedom, expression, education, and debate.

How to decide if your use is fair

Our office can’t make a fair use determination for you, but we can provide information and tips to help you make an informed evaluation. 

You’ll need to consider each of the following four factors order to determine whether your intended use is fair. While one factor may not weigh in your favor, that does not mean your use is not a fair use overall. 

At the same time, there simply is no bright line rule about what is and what is not a fair use of a copyrighted work. The outcome of any given case depends on the specifics of the use of each individual work.

Fair use factor 1

The purpose and character of the use, including whether the intended use is commercial vs. for nonprofit educational purposes.

Applying the factor

Uses in nonprofit educational institutions are more likely to be fair use than works used for commercial purposes.

Ask yourself whether your use of the work will be “transformative.” “Transforming” a work means that you are not merely reproducing the work, but rather adding something new or original, like new insights or understandings about the work. The more your use has to say about the work, that is, really working with it rather than it being a substitute for the original use of the work, the more likely it is that you’re adding new insights or understandings which were not the original creator’s intention in creating or publishing the work.

Fair use factor 2

The nature of the copyrighted work.

Applying the factor

Distributing factual works is more likely to be fair use than doing so with creative, artistic works such as musical compositions.

Using unpublished works is less likely to be considered fair than using previously published works. In part, this is due to recognition that authors have the right to determine when their material is first published. 

Fair use factor 3

The amount and significance of the portion used in relation to the entire work.

Applying the factor

Generally speaking, by using less of the original work, your use is more likely to be considered fair. 

It is also important to consider whether what you are using is the “heart” of the original work (even if only a small amount). Using the crux of a work weighs against a use being fair.

There is no set percentage of a work that automatically renders a use fair, or that automatically rules out a finding of fair use. Instead, best practices for falling within fair use mean reproducing an amount limited to what is necessary and appropriate for why you are using it. 

Fair use factor 4

The effect of the use upon the potential market for or value of the original.

Applying the factor

Uses that have no or little market impact on the copyrighted work are more likely to be fair.

So: Consider whether your use serves as a substitute for purchasing or licensing the original. If your use supplants the current market for the original work (for example, by displacing sales of the original), then the use is less likely to be fair. 

While it is important to balance all four of the factors, the courts tend to favor a finding of fair use when the use is shown to be “transformative” (factor 1) and does not affect the market (factor 4). If factors 1 and 4 weigh in your favor, while factors 2 and 3 weigh against, historically the courts have been more likely to find the use fair.

Learn more

• If you’re interested in evaluating fair use for items in the UC Berkeley Library collection, visit our Permissions Policies page.
• Check out the Fair Use Checklist from Columbia University.
• Visit the UC Copyright website on Fair Use, and the UC Policy on Copyright and Fair Use.
• View the fair use presentation and video below, or contact our office for more help. 

Instruction

This page is aimed at instructors (faculty, lecturers, staff, etc.).

You should use this page if you have questions like:

• Can you distribute journal articles or book chapters, either in your classroom or by uploading to your course websites? 
• What resources or movies can you show in a live or virtual classroom?

Remember, as noted in our Copyright basics section, you never have to ask permission to share links to lawfully-uploaded content or library resources. That’s because linking does not constitute “reproduction,” so you’re not invoking any of the exclusive rights of copyright holders when you merely direct students to a lawfully distributed or displayed copy of a work. 

It is also important to remember that, as long as you use good faith efforts — such as by following these guidelines — to make fair uses, the University will support and defend you in the unlikely event that your use of the material is ever challenged.

Guidance

We explain below what copyright law allows you to do when you’re reproducing (e.g. making print or digital copies), displaying (e.g. showing content in a presentation or on Zoom), or distributing (e.g. uploading works to bCourses or emailing to students) copyrighted materials in the context of your class.

If you answer “yes” to any question below, you can share the work itself, rather than a link to it, and without getting permission from the copyright owner.  

If you answer “no” to all questions below, then you should share only a link to the content, rather than the work itself, or ask for the copyright owner's permission to share. (We talk about how to get that permission at the end.) 

1. Has a license or permission already been provided?

Sometimes, authors or copyright holders have granted permission for particular instructors to reproduce, display, or distribute copyrighted materials. If a copyright holder has provided you with written permission to share their work with your students or post their work on your course site, you may go ahead and distribute the work as indicated and should retain the written conveyances for record-keeping purposes.

In other instances, authors may have expressly provided the public with permission for republication of their copyrighted materials through an open license such as one of the Creative Commons licenses. A Creative Commons license allows you to make certain specified uses of a copyrighted work without asking for prior permission. The license, itself, will identify the terms and conditions of what uses can be made, and what attributions must be provided.

2. Is the material in the public domain?

You can share public domain works without getting permission or paying royalties because public domain works are not protected by copyright. “Public domain” refers either to works for which copyright protection has expired, or that were ineligible for copyright protection from the start. 

Just because material is available online does not mean it is in the “public domain.” Instead, to determine whether a work has entered the public domain due to expiration of copyright, you can check the following resources:

• The University of California has provided helpful general rules of thumb in its Copyright guide; see Public Domain.
• For more detailed inquiries, we recommend using Cornell’s chart, Copyright Term and the Public Domain in the United States in combination with the Stanford Copyright Renewal Database.  

In addition, certain types of work are ineligible for U.S. copyright protection, and thus also are considered to be in the public domain:

• Ideas and facts (While copyright law does not protect facts, an author's original compilation, arrangement, or selection of facts may be protected. In other words, factual compilations may be protected even where the facts, themselves, are not.) 
• U.S. government works (although state government works may be protected, as may works funded — but not produced by — the federal government)
• Scientific principles, theorems, formulae, and natural laws
• Scientific and other research methodologies, statistical techniques, and educational processes
• Most laws, regulations, judicial opinions, and legislative reports
• Words, names, numbers, symbols, signs, rules of grammar and diction, and punctuation

3. Would posting the content be fair use?

You can share materials with your students without getting a copyright owner’s permission if your use would be a “fair use” under the “fair use” provision of U.S. Copyright law. The fair use provision lays out four factors you should consider to determine whether your use is “fair”. 
 
There is no set amount of material (like 1-2 chapters, or 10% of a book) that is always going to be considered fair. You'll need to make a case-by-case decision for each work you want to distribute.
 
Check out our web section on fair use for more detailed information about making a fair use evaluation. When considering these factors, keep in mind that the fair use exception is purposefully broad and flexible to promote academic freedom, expression, education, and debate. 

For additional guidance, check out the University of California’s copyright website. The University recommends that, when making multiple print or digital copies of articles, book chapters, or other works for classroom use or discussion, you ensure: 

• There is a clear connection between the work being copied and the instructor’s pedagogical purpose.
• The amount you have copied is tailored to include only what is appropriate for the instructor’s specific educational goals.
• You provide access to works online only for the duration of the course for which they are provided, and limited to students enrolled in a course and other appropriate individuals (e.g. teaching assistants for the course).
• You provide full attribution to the author for each work you include. 

4. Is sharing the work covered by another statutory exception to copyright?

There are other copyright exceptions that also permit certain classroom uses. For instance, you can show brief clips from films or videos clips under Section 110(1) of U.S. Copyright Law. But generally speaking, all of these other exceptions are narrower than what you could do under fair use. Meaning: If you think a use is fair, that will give you a much broader remit to display or distribute content than the specific carve-outs provided by other exceptions like the TEACH Act.

Nevertheless, if you have questions about these other exceptions, please contact us, or check out the details on the UC’s Copyright web page. 

Getting permission

If you’ve answered “no” to each question above, you can seek permission from the rights holder to reproduce, display, or distribute the copyrighted work in your class. Commercial services like the Copyright Clearance Center can also assist with obtaining licenses for a fee, which may be helpful in instances in which it is difficult to determine who the rights holder is.

Learn more

Our office has provided other ways for you to learn about displaying or sharing copyrighted materials in the context of a class. Check out the presentation and video below, or contact us for more help. 

Publishing issues

As you’re preparing to create or distribute digital scholarship that contains content created by or about third parties, there are some copyright and other legal considerations to consider. 

You should use this page if you have questions like:

• I want to include or reproduce photos, text excerpts, scientific drawings, or diagrams in an article I’m writing. Do I need the copyright holder’s permission to include them? 
• I’m using materials from a digital archive. Can I? How do their terms of service or license agreements affect me? 
• My research includes information about living individuals. Do I need to take into account any privacy rights issues before I share my work? 
• I’m working with potentially culturally sensitive materials. What types of ethical concerns should I know about in my research and publishing? 

Note that if your questions involve those same issues in the context of instruction (as opposed to publishing scholarship) see our section on copyright in instruction.

Guidance

What we offer below is a step-by-step way to approach answering these usage rights questions. 

Important note: There is a difference between providing attribution to an author and having the right to reproduce and distribute the author’s work. Attribution is something you do as a matter of scholarly and professional practice. So, when you incorporate a quote or an argument from an author into your academic paper, you cite it. This is expected of us as scholarly authors. But whether we can actually copy and share works created by others is based on copyright, contracts, and other legal considerations.

1. Do you need permission?

You don’t need the copyright holder’s permission to include an excerpt/photograph/diagram/ whatever-content-you’re-using, if you can answer “yes” to any one of the following:

• The copyright holder has already granted a license for you to include their work in your scholarship. Sometimes, authors have already provided permission through licenses such as Creative Commons licenses. For instance, this photo of a hot air balloon can be used for any purpose as long as you attribute the author. The reason you may reuse it without having to ask permission is because the rightsholder has granted permission in advance by licensing it under a Creative Commons Attribution (CC-BY) license.
• The work is in the public domain. “Public domain” refers either to works for which copyright protection has expired, or that were ineligible for copyright protection from the start. Just because a work is online does not mean it’s in the public domain.
• Publishing the content would be fair use. Fair use — which is meant to encourage teaching, research, scholarship, criticism, and parody — allows you to exercise the otherwise-exclusive rights of the copyright holder (distribution, creating adaptations, etc.) without having to seek the copyright holder’s permission. The fair use provision lays out four factors you should consider to determine whether your use is “fair”. There is no set amount of material that is always going to be considered fair. You'll need to make a case-by-case decision for each work you want to distribute.

If you can answer “yes” to any of those questions, you don’t need permission and you can skip to step 3. With one small caveat: Sometimes the journal or book publisher that is publishing your scholarship may require express permission even if you, personally, believe the use would be a fair use. So, occasionally you may need to get permission even though the law does not technically require it.

2. If the copyright holder’s permission is needed, how do you get it?

If you couldn’t answer “yes” to any of the questions in step 1 above, you’ll need to seek the copyright holder’s permission to include the content in your scholarly work or excerpt. 

Obtaining permission from a rightsholder to use their work can take a long time, so plan in advance. You’ll need to research and locate the copyright holder and then ask, in writing, for permission covering all your intended uses. Here is a sample permission letter (click to download) from UCLA. 

A copyright holder’s silence is not permission. If you do not hear back in response to your request, you are now faced with a question of risk assessment, and whether to keep seeking permission or embrace the likelihood (or not) of the rights holder challenging your use down the road.

3. What about other non-copyright legal or policy concerns?

Contracts and terms of use

One key non-copyright legal issue that often comes up in the context of scholarship is contract law. If you are using materials from archives, museums, or library special collections, you may need to consider the libraries database agreements, website terms of use agreements, or other contracts you signed (or clicked through online). This is because, irrespective of whether the materials are protected by copyright, you may have entered into or be bound by an agreement dictating whether or not you can use and include content from the websites in your scholarship and publishing.

For example, you may see clauses in a library database agreement or a website’s “Terms of Use” that prohibit downloading any content, or prohibit republishing content, or prohibit scraping unless you use an API. Those terms could supersede any rights you would have had under copyright law, including fair use. 

You should know that:

• Not all websites’ “Terms of Use” are enforceable by a court. Contract issues are questions of an individual state’s law, rather than federal law — where copyright is governed. Courts in different states may require that users have either actual or constructive notice of the terms of use. This basically means these courts will ask: Would a reasonable person have been aware of the terms based on how the website was presented? Courts that are evaluating whether constructive notice was provided will look to things like how visible the terms of use were, and whether the users were asked to consent to them.
• Some courts simply rule that the terms of use are enforceable regardless of whether a user clicks a “consent” button.

So what should you know as a general guideline? You should be aware that these terms may exist, and you should make risk calculations accordingly.

• Often, if you are accessing publicly-available content and downloading it — without breaking access barriers to get to that content — the website owner may not have suffered damages and may not be able to succeed on a contractual breach claim (though it doesn't mean they won't try).
• You should also keep in mind that if you are downloading content from a library-subscribed database, it’s the library’s agreement (and not the more generic terms of use you find online for the website) that likely matters.

At the end of the day, it’s important to read carefully any database or archives agreement or website terms of use that you are asked to agree to. Inquire with the library or archives directly about whether a waiver is possible (if you need one), or seek additional information from them about securing the right to publish.

Privacy and publicity rights

While copyright protects copyright holders’ property rights in their works, privacy law protects the interests of people who are the subjects of those works. Privacy rights in scholarship most often arise if you are seeking to use third party content like correspondence, diaries, and images that contain personal information about or pictures of particular people. The State of California privacy laws protect against things like: 

• Intrusion upon seclusion (e.g. someone enters your property and takes pictures of you through a window; you have a legitimate expectation of privacy in the physical space of your home).
• Public disclosure of private facts (e.g. someone wrongfully publicizes your private affairs — such as facts about your health, sexual conduct, finances, etc. — that are outside the realm of legitimate public concern).
• Painting someone in a false light (e.g. someone publishes a photograph of you at a protest and the caption describes you as a participant in the protest when you were just there observing it; the publicity must be highly offensive to a reasonable person).
• Appropriation of name or likeness (e.g. someone uses your name, voice, identity, likeness, etc. for commercial purposes without your consent).

While it’s important for you to take privacy concerns seriously, there are crucial limitations on privacy rights that can support your digital scholarship and publishing. 

• First, privacy rights expire at death. So there is no state law prohibition for disclosing private facts about a person who’s deceased. (Certain health and financial information may remain protected under federal law.)
• Second, if the individual is not identifiable from the information or image you’re providing, there is no state law privacy violation. 
• Third, the dissemination of truthful, newsworthy material is not actionable as a claim for the tort of public disclosure of private facts. Newsworthiness is at the same time a constitutional defense to, or privilege against, liability for publication of truthful information. Courts look to whether the facts you’re seeking to disclose are of legitimate public concern and/or would be highly offensive to a reasonable person. 
• Finally, if the subject has given their ok to publish the information, then their consent allows you to move forward.  

Note that there is another type of “privacy” right that involves using someone’s name or likeness without their permission. These are called “publicity rights,” and the good news is that: Predominantly they do not arise in your scholarship. That’s because publicity rights typically prevent unauthorized commercial use of an individual’s name, likeness, or personal attributes. 

However, if you are embarking upon a project in which you will derive financial gain, you may need to consider publicity rights. Unlike most other privacy rights, sometimes publicity rights survive an individual's death, such that a person’s estate may enforce them even if the person is no longer alive. Further, remember that the right of publicity is a protection independent from copyright. Thus, even if photographs of a famous historical figure may be in the public domain, that person's estate may still choose to enforce publicity rights against unauthorized commercial appropriation of their likeness.

Ethical considerations

What do you do with research data and findings that are not technically private, but you feel might be sensitive? You may want to evaluate how or whether to publish certain materials digitally if sharing such materials could lead to exploitation of people, resources, or knowledge. For example, you may determine not to publish materials if there is substantial concern that disclosure of geographic locations or persons could put the materials at those sites or particular individuals at risk. Alternatively, perhaps your scholarship could threaten the safety of individuals who could be punished for having spoken out against a political regime.

Strategies for addressing ethics

There are a variety of strategies to navigate questions of ethics in research and publishing your scholarship. For example, you could: 

• Consult journal publications or professional association guidelines.
• Develop local best practices (for instance, you could conduct decision-making within your research group).
• Impose access controls (e.g. user registration to view; publish only data visualizations or extractions), but you’d need to consider the intersection with any publisher open data requirements.
• Undertake community engagement to consult with affected populations, and ensure that benefit reverts back to the communities.
• Seek institutional review board (IRB) involvement/approval, even if none is technically required. Of course getting IRB review and approval for research that ordinarily doesn’t need approval can slow down the research process.
• Adopt a new ethics/privacy paradigm (for example, moving from consent-based to harm-avoidance). 

Ethics readings

If you’d like to learn more about options to address ethics in connection with digital scholarship, the following resources may help.

• Benefit-Risk Analysis for Big Data Projects
• Elements of a New Ethical Framework for Big Data Research
• Applying an Ethics of Care to Internet Research: Gamergate and Digital Humanities 
• Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research
• Beyond the Belmont Principles: Ethical Challenges, Practices, and Beliefs in the Online Data Research Community
• The Ethical Challenges of Publishing Twitter Data for Research Dissemination

4. Manage your own rights

Now that you understand how to include others’ works into your scholarship, you have some decisions to make about how you want to share your work. We explain this in greater detail in our Managing Copyrights section. 

Learn more

• View the fair use presentation and video below, or contact our office for more help. 

Managing copyright

In the Publishing issues section, we discussed the law and policy considerations you’ll need to undertake when you want to include others’ works into your scholarship. But as an author, you also have rights and options when you want to share your own work. That is, you have copyright, too.

Before you share your work with the world, or give it to a publisher for publishing, it’s important to think both short- and long-term about how you want to use your work, including what rights you wish to retain versus those you’re comfortable licensing or transferring.

This page provides guidance on how to do and think about all of that. We call this: managing your author rights, or managing your copyright. 

Do you own copyright?

The basic rule is that: As an academic author, you hold copyright in your scholarly works unless you’ve signed agreements otherwise or until you transfer all or certain rights to a publisher. 

More specifically, the UC’s Copyright Ownership Policy and Ownership of Course Materials Policy clarify who owns the copyright to original works created at UC and how the rights of ownership are allocated between scholarly authors and the university. 

Copyright normally retained by the author

• Scholarly/aesthetic works created by academic authors using independent academic effort. 
• Course materials (other than Course Approval Documents).
• Personal works prepared outside the scope of employment. 
• Student works.

Copyright normally retained by the university

• Institutional works created by UC employees within the scope of their employment. 
• UC sponsored works.
• Works acquired by assignment or will.

Copyright normally governed by written agreements

• Course materials created with use of Exceptional University Resources.
• Personal works outside scope of job created with use of university facilities.
• UC sponsored works.
• UC commissioned works.
• Contracted facilities works.
• Special University Projects.

Nonexclusive license retained by university to use works for education and research

• UC sponsored works not owned by university.
• UC commissioned works not owned by university.
• Course approval documents created by designated instructional appointee. 

Do you need to register your copyright?

You do not need to register your copyright with the U.S. Copyright Office to hold copyright. However, there are certain benefits of registering your copyright, (see p. 5 of the Copyright Office circular for more details). 

First, registering your work creates a public record of evidence that you are indeed the author and owner.

Second, registration allows for greater enforcement of your rights against a copyright infringer, enabling you to file a lawsuit and later making available statutory damages (set out in Title 17, Section 504 of the U.S. Code), which range from $750-$150,000 plus attorney’s fees per copyright infringement. 

If you decide to register copyright for your scholarship, you can do so through the Copyright Office’s website for a fee starting at $45.

What can you do with your copyright?

The Copyright basics section discussed how having “copyright” means that you have the exclusive right to make certain uses of your work for a limited period of time (though of course subject to others' ability to make fair uses of your work, or exercise other statutory exemptions). 

As the copyright holder of your works, you have various options for leveraging these exclusive rights. For example, if you’ve written a scholarly article, you can enter into a publishing agreement that grants a publisher some — but perhaps not all — of your exclusive rights under copyright. For example, you can grant a publisher the right to make reproductions and distribute your work, but not to publish derivative works based upon it (like translations, or audio versions). 

It’s important for you to understand what you are granting to publishers when you enter into a publication agreement, as this determines how you can manage your rights downstream. 

Special exception: Deposit into eScholarship.org

There are some things you’re permitted to do with your scholarly works regardless of whether you transfer your copyright to a publisher. In addition to making fair uses, you can also deposit a copy of your author accepted manuscript into escholarship.org, the UC’s institutional repository. 

As of October 23, 2015, all UC employees are covered by one of the UC open access policies, which reserve rights for UC faculty and employees to make their articles freely available to the public in an open access repository. The policies do this by automatically granting a non-exclusive copyright license to the university prior to any later agreements authors may sign with publishers. UC retains those rights regardless of what rights authors may subsequently transfer to publishers. So, even if you transfer rights in an article to a publisher, you’ve already granted the UC a license to make a copy available in the eScholarship repository.

Most academic publishers have already been notified of the UC’s open access policies, but if you wish to remind them, the UC Office of Scholarly Communication offers a tool to generate an addendum to your publishing agreement — re-notifying your publisher of the UC’s open access policy.

What rights do publishers usually ask you for?

Typically, journals’ publishing agreements will ask that you transfer or license your copyrights without compensation. The value (or “consideration,” in legal terms) that you gain in exchange for conveying a transfer or license is that you’re being published in a journal, which also carries the potential for gaining scholarly impact. The value the publisher gains is being able to control how your work is published, and in setting the terms and conditions for others to access the work (e.g. subscription prices, online access).

In the case of scholarly books, the publishing agreement will typically involve a monetary transaction: You receive a lump sum or royalties based on how many books are sold, and the publisher receives rights to control the price of the books (if they’re not open access), the manner and terms of how the book is published, and whether new editions or translations are created.

Publishing agreements can differ in many ways. For instance:

• They might ask for rights only for publishing in certain types of media (e.g. print books but not eBooks), or for certain periods of time or editions.
• One publisher’s agreement may ask you to transfer all of the exclusive rights you hold, or an agreement might not be asking for a transfer at all, but instead merely license to certain of your rights on an exclusive basis.
• Sometimes with journals, the “exclusivity” period is only for six months or a year, after which point you’re able to post copies of the work on other sites or use it in other ways.

You’ll need to review the terms of your publishing agreement carefully, as they could limit how you can use your work later on. For instance:

• You later desire to have your book published as an eBook, or for a copy to be made available open access with a Creative Commons license, but you have assigned all copyright to your publisher.
• You wish to commission a translation of your scholarly article, but your publisher now holds those rights.
• You want to post a copy of the publisher’s version of an article on your personal or departmental website, but your publishing agreement prohibits you from doing so. 

Assessing your future intentions before you sign your agreement will better position you to be able both to understand and negotiate the rights or licenses they’ve asked you to confer.

How can you control what rights you transfer to publishers?

Once you figure out what future uses you want to make from your work, you can explore what options you have to preserve the necessary rights. It may not always be possible to successfully negotiate changes to your publisher’s agreement. But it’s often worth trying.

Generally speaking, there are a few main approaches you could take:

1. Transfer your copyrights but reserve certain rights or licenses for yourself

If you already know exactly what kinds of uses you want to make — such as posting to a personal or departmental website, making a later derivative work such as a translation, etc. — then you can try expressly adding or building in this planned use into the publishing agreement. One way to do this is by adding language like the following after the sentences or paragraphs in which transfer occurs: “Notwithstanding the foregoing…” or “Except that nothing in this paragraph shall limit [author’s name] right to…,” and then specifying the rights you wish to retain. Likewise, if you’re being asked to provide “exclusive” rights that would prohibit you from making certain uses of your own work that you know you want to make, you may wish to strike this language and insert “non-exclusive” for these particular rights. If you’re not sure what kind of modifying language to use, check out the SPARC Author Addendum, a legal instrument that modifies the publisher’s agreement so you may keep certain rights to your articles. 

You can also expressly include what are called “reversion” or “out-of-print” clauses (most often applicable in book publishing agreements). These clauses assign copyright to a publisher for only as long as the work is still “in print” — after which point, copyright reverts to the author. Of course, agreements differ in how they define out-of-print. Reversion clauses can be incredibly useful to ask for if they are not already built into your agreement, because they streamline the process for getting your rights back if the publisher decides, for instance, to stop publishing your book. The reversion clauses will probably differ in terms of the “triggering” event, and the steps you must take to exercise your reversion right once the triggering event has occurred.

2. Retain copyrights but grant certain licenses

Alternatively, you might be able to negotiate to keep your copyright and instead grant certain exclusive licenses to your publisher. Some publishers may be satisfied with, for instance, being given “exclusive worldwide first publication rights” in certain or all languages. Granting a “first publication” license can mean you get to keep rights to do other things with your work, such as posting copies to your website, creating adaptations or books that incorporate the original manuscript.

How can you get back rights that you’ve transferred?

Sometimes, you can get rights back even if you’ve licensed or assigned them away. 

By contract: Even if your publisher agreement doesn’t expressly have a reversion clause, you could try negotiating for rights reversion with your publisher anyway — particularly where the book is out-of-print or circulation. Publishers might be willing to assign rights back to you if they have no future commercial plans for your work. For a great guide on how to later negotiate a reversion of rights, even if the publishing agreement you signed didn’t contain one, check out Chapter VI of Authors Alliance’s guide Understanding Rights Reversion (pp. 70-100). 

By statute: Alternatively, there is a right that arises automatically under copyright statutes called Termination of Transfer. For works created after 1978, Section 203 of the Copyright Act allows for the termination of transfer after a certain period of time has lapsed. But the conditions to exercise the right are strict. For example, you generally have a 5-year window to issue a termination notice to the copyright holder, and this only becomes available 35 years after you have transferred your copyrights. Rightsback.org makes it easier for authors to determine whether they qualify for termination of transfer rights.

What are your options for granting a license to the public?

If what you want to do is keep copyright for yourself, but license other people to do things with your work beyond fair use, you can choose to apply a “Creative Commons License” to your work. For more information on Creative Commons options, visit our Licensing page. 

Learn more

Contact our office for more help. 

Licensing

If you’re about to self-publish on a website or sign a publishing agreement, you may want to think about how to manage your copyrights, and what rights you want to keep or grant to others. We discuss these issues in the Managing Your Copyright and Negotiating Agreements section.

This page provides information about what licensing options are at your disposal. For instance, what if you want to share your research online for others to read and build from, but don’t want anyone to utilize it commercially? You’ll want to know how indicate these restrictions in the license you grant.

Here, we explain common licensing options and a straightforward way to think about them. Remember, we cannot give legal advice. But what we can and do offer are tools to help you approach thinking about licensing and managing your rights.

Confirm what you own

As we discussed with Managing Your Copyrights, before you grant licenses, you first have to figure out what you own.

As an academic author, you often hold copyright in your scholarly works unless subject to certain agreements, or until you transfer all or certain rights to a publisher. The University of California’s Copyright Ownership and Ownership of Course Materials policies clarify who owns the copyright to original works created at UC and how the rights of ownership are allocated between the authors and the university. These policies are explained in UC’s Copyright guide.

But in short, here are the basic terms of the UC policy. 

Copyright retained by originator/author

• Scholarly/aesthetic works created by designated academic and instructional appointees, including UC faculty.
• Course materials (other than Course Approval Documents).
• Personal works prepared outside scope of employment.
• Student works.

Copyright normally retained by university

• Institutional works created by UC employees within the scope of their employment.
• UC sponsored works.
• UC commissioned works.
• Works acquired by assignment or will.

Copyright normally governed by written agreements

• Course materials created with use of Exceptional University Resources.
• Personal works outside scope of job created with use of university facilities.
• UC sponsored works.
• UC commissioned works.
• Contracted facilities works.
• Special University Projects.

Nonexclusive license retained by university to use works for education and research

• UC sponsored works not owned by university.
• UC commissioned works not owned by university.
• Course approval documents created by designated instructional appointee.

Consider what you want to license and to whom

Remember from the Copyright Basics page that having “copyright” means holding the right to make all of the following exclusive uses of your work for a certain period of time (of course, subject to others’ rights to make fair uses or rely upon other statutory exemptions):

• Reproduction
• Preparation of derivative works (such as adaptations)
• Distribution
• Public performance
• Public display
• Public performance of sound recordings via digital audio transmission

You can grant permission (or a “license”) to others to make certain but not all such uses. For instance, you can grant someone the right to make copies of your manuscript for a class, but not “publicly display” it by posting them online on the open web.

And, you can decide to grant these licenses non-exclusively or exclusively. In other words, you can grant someone the exclusive right of reproducing your work, but that might mean you can no longer reproduce it yourself! If your work is jointly authored, you can grant only non-exclusive rights to others unless you have the consent of all authors (see the UC Copyright Guide’s section on Jointly Authorship and Collective Works for an explanation of this).

Choosing or accepting a license

Now that you have decided what rights you want to grant, it’s time to choose a license for materials you are self-publishing or posting, or determine whether to accept the licensing terms in a publisher's agreement. (If a publisher is instead asking you to transfer all copyrights, then you’ll want to think about what rights you essentially want to “grant back” or “license back” to yourself.)  

When it comes to selecting licenses, we recommend using a “pre-fabricated” license for your works — that is, one that has been drafted and vetted by legal teams, rather than one you develop yourself.

Perhaps the most useful and easy-to-apply options are Creative Commons licenses, labels, and designations. (Note that for computer software, the Open Source Initiative has posted sample “open source” software license agreements that function similarly to Creative Commons licenses.) We explain these Creative Commons licenses, labels, and designations below.

Side note: We know what “licenses” are, but what do we mean by “labels” or “designations”? Well, some of the Creative Commons marks aren’t actually licenses, because they instead are ways for you to disclaim copyright or label the materials as being in the public domain. They’re not technically licenses because you're not really holding certain rights and granting rights to others; rather, they are affirmations that no copyrights apply or are being claimed.

Creative Commons licenses

Creative Commons licenses allow copyright owners to retain copyright while allowing others to copy, distribute, and make some uses of their work, either commercially or not, depending on the copyright owner's preference and license. Creative Commons licenses also specify that licensors get credit for their work. 

Creative Commons offers a Choose Your License Tool that asks you a few questions about what you want to let others do, and then reveals which license meets your stated needs. The Choose Your License Tool essentially allows you to select between combinations of all the following parameters (and our excerpted descriptions below are from the Creative Commons Licensing Types page):

 Attribution (BY): “All CC licenses require that others who use your work in any way must give you credit the way you request, but not in a way that suggests you endorse them or their use.” 

 Noncommercial (NC): “You let others copy, distribute, display, perform, and (unless you have chosen NoDerivatives) modify and use your work for any purpose other than commercially unless they get your permission first.”

 No Derivative Works (ND): “You let others copy, distribute, display and perform only original copies of your work. If they want to modify your work, they must get your permission first.”

 Share Alike (SA): “You let others copy, distribute, display, perform, and modify your work, as long as they distribute any modified work on the same terms. If they want to distribute modified works under other terms, they must get your permission first.”

Example

So, for instance, a CC BY-ND license allows for redistribution, commercial and non-commercial, as long as the work is passed along unchanged and in whole, and with credit to you. To actually apply the license, you can put either the image or the legal code (CC BY-ND 4.0) somewhere on your work, like this:

This work is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License.

Creative Commons labels and designations

There are two applications of Creative Commons marks that are not “licenses” because you are not claiming copyright. Rather, you are affirming the opposite — that either the work has entered the public domain (Public Domain Mark, or PDM), or you might hold copyright but are nevertheless dedicating your work to the public domain (Creative Commons Zero, or CC0).

 Public Domain Mark

The PDM is intended for use with works that are already free of known copyright restrictions throughout the world. PDM is not legally operative in any respect – it is intended to function as a label, marking a work that is already free of known copyright restrictions. It is not recommended for use with works that are in the public domain in some jurisdictions if they also known to be restricted by copyright in others.

  Creative Commons Zero Designation

The CC0 designation is a way for you to designate your work to the public domain — that is, disclaiming any copyright that you might otherwise hold in the work. As Creative Commons FAQs explain, “Once the creator or a subsequent owner of a work applies CC0 to a work, the work is no longer his or hers in any meaningful sense under copyright law. Anyone can then use the work in any way and for any purpose, including commercial purposes, subject to other laws and the rights others may have in the work or how the work is used. Think of CC0 as the 'no rights reserved' option.”

Creative Commons offers a chart comparing the attributes of CC0 and PDM.

Questions?

Ask us!

Dissertations

Your dissertation or thesis is yours. UC Berkeley students generally own the copyrights of their creative works, including dissertations and theses.

But you still need to think about rights issues regarding what you put into your dissertation, and also your own rights once you click “submit.”

The guidance below builds upon our Publishing issues section to help you understand the copyright and other legal considerations in writing and publishing your dissertation or thesis. You should use this page if you have questions like:

• I want to include or reproduce photos, text excerpts, scientific drawings, or diagrams in my thesis. Do I need the copyright holder’s permission to include them? 
• I’m using materials from an archive. Can I? How do their terms of service or license agreements affect me? 
• My dissertation research includes information about living individuals. Do I need to take into account any privacy rights issues before I share my work? 
• I’m working with potentially culturally sensitive materials. What types of ethical concerns should I know about in writing and publishing my dissertation? 
• Do I need to register my copyright with the U.S. Copyright Office?
• Should I put an embargo on my dissertation or dissertation, or should I share it immediately under an open license? 

Note: While we talk about rights issues here, we do not discuss the logistics of filing your dissertation or thesis. For that, you need to consult Berkeley Graduate Division’s guide to the mechanics of dissertation and thesis writing and filing. The Graduate Division website also addresses policies pertaining to your dissertation or thesis that are set by the university, including​:

• Permission to Include Your Own Previously Published or Co-Authored Material
• Inclusion of Your Own Publishable Papers or Article-Length Essays
• Publishing Your Dissertation; Embargoes

Do you need permission to include someone’s photo, quote, etc.?

You don’t need the copyright holder’s permission to include an excerpt/photograph/diagram/whatever-content-you’re-using if you can answer “yes” to any one of the following:

• The copyright holder has already granted a license for you to include their work in your scholarship. Sometimes, authors have already provided permission through licenses such as Creative Commons licenses. For instance, this photo of a hot air balloon can be used for any purpose as long as you attribute the author. The reason you may reuse it without having to ask permission is because the rightsholder has granted permission in advance by licensing it under a Creative Commons Attribution (CC-BY) license.
• The work is in the public domain. “Public domain” refers either to works for which copyright protection has expired, or that were ineligible for copyright protection from the start. Just because a work is online does not mean it’s in the public domain.
• Publishing the content would be fair use. Fair use — which is meant to encourage teaching, research, scholarship, criticism, and parody — allows you to exercise the otherwise-exclusive rights of the copyright holder (distribution, creating adaptations, etc.) without having to seek the copyright holder’s permission. The fair use provision lays out four factors you should consider to determine whether your use is “fair”. There is no set amount of material that is always going to be considered fair. You'll need to make a case-by-case decision for each work you want to distribute.

If you can answer “yes” to any of those questions, you don’t need permission. With one small caveat: Sometimes the journal or book publisher that is publishing your scholarship may require express permission even if you, personally, believe the use would be a fair use. So, occasionally you may need to get permission even though the law does not technically require it.

Important note: There is a difference between providing attribution to an author and having the right to reproduce and distribute the author’s work. Attribution is something you do as a matter of scholarly and professional practice. So, when you incorporate a quote or an argument from an author into your academic paper, you cite it. This is expected of us as scholarly authors. But whether we can actually copy and share works created by others is based on copyright, contracts, and other legal considerations.

If the copyright holder’s permission is needed, how do you get it?

If you couldn’t answer “yes” to any of the questions above, you’ll need to seek the copyright holder’s permission to include the content in your scholarly work or excerpt. 

Obtaining permission from a rightsholder to use their work can take a long time, so plan in advance. You’ll need to research and locate the copyright holder and then ask, in writing, for permission covering all your intended uses. Here is a sample permission letter from UCLA (file downloads). 

A copyright holder’s silence is not permission. If you do not hear back in response to your request, you are now faced with a question of risk assessment, and whether to keep seeking permission or embrace the likelihood (or not) of the rights holder challenging your use down the road.

What about other non-copyright legal or policy concerns?

Contracts and terms of use

One key non-copyright legal issue that often comes up in the context of scholarship is contract law. If you are downloading materials from the internet, or using materials from archives, museums, or library special collections, you may need to consider the libraries database agreements, website terms of use agreements, or other contracts you signed (or clicked through online). This is because, irrespective of whether the materials are protected by copyright, you may have entered into or be bound by an agreement dictating whether or not you can use and include content from the websites in your scholarship and publishing.

For example, you may see clauses in a library database agreement or a website’s “Terms of Use” that prohibit downloading any content, or prohibit republishing content, or prohibit scraping unless you use an API. Those terms could supersede any rights you would have had under copyright law, including fair use. 

You should know that:

• Not all websites’ “Terms of Use” are enforceable by a court. Contract issues are questions of an individual state’s law, rather than federal law — where copyright is governed. Courts in different states may require that users have either actual or constructive notice of the terms of use. This basically means these courts will ask: Would a reasonable person have been aware of the terms based on how the website was presented? Courts that are evaluating whether constructive notice was provided will look to things like how visible the terms of use were, and whether the users were asked to consent to them.
• Some courts simply rule that the terms of use are enforceable regardless of whether a user clicks a “consent” button.

So what should you know as a general guideline? You should be aware that these terms may exist, and you should make risk calculations accordingly.

• Often, if you are accessing publicly-available content and downloading it — without breaking access barriers to get to that content — the website owner may not have suffered damages and may not be able to succeed on a contractual breach claim (though it doesn't mean they won't try).
• You should also keep in mind that if you are downloading content from a library-subscribed database, it’s the library’s agreement (and not the more generic terms of use you find online for the website) that likely matters.

So, read carefully any database or archives agreement or website terms of use that you are asked to agree to. Inquire with the library or archives directly about whether a waiver is possible (if you need one), or seek additional information from them about securing the right to publish.

Privacy and publicity rights

While copyright protects copyright holders’ property rights in their works, privacy law protects the interests of people who are the subjects of those works. Privacy rights in scholarship most often arise if you are seeking to use third party content like correspondence, diaries, and images that contain personal information about or pictures of particular people. The State of California privacy laws protect against things like: 

• Intrusion upon seclusion (e.g. someone enters your property and takes pictures of you through a window; you have a legitimate expectation of privacy in the physical space of your home).
• Public disclosure of private facts (e.g. someone wrongfully publicizes your private affairs — such as facts about your health, sexual conduct, finances, etc. — that are outside the realm of legitimate public concern).
• Painting someone in a false light (e.g. someone publishes a photograph of you at a protest and the caption describes you as a participant in the protest when you were just there observing it; the publicity must be highly offensive to a reasonable person).
• Appropriation of name or likeness (e.g. someone uses your name, voice, identity, likeness, etc. for commercial purposes without your consent).

While it’s important for you to take privacy concerns seriously, there are crucial limitations on privacy rights that can support your digital scholarship and publishing. 

• First, privacy rights expire at death. So there is no state law prohibition for disclosing private facts about a person who’s deceased. (Certain health and financial information may remain protected under federal law.)
• Second, if the individual is not identifiable from the information or image you’re providing, there is no state law privacy violation. 
• Third, the dissemination of truthful, newsworthy material is not actionable as a claim for the tort of public disclosure of private facts. Newsworthiness is at the same time a constitutional defense to, or privilege against, liability for publication of truthful information. Courts look to whether the facts you’re seeking to disclose are of legitimate public concern and/or would be highly offensive to a reasonable person. 
• Finally, if the subject has given their ok to publish the information, then their consent allows you to move forward.  

Note that there is another type of “privacy” right that involves using someone’s name or likeness without their permission. These are called “publicity rights,” and the good news is that: Predominantly they do not arise in your scholarship. That’s because publicity rights typically prevent unauthorized commercial use of an individual’s name, likeness, or personal attributes.

However, if you are embarking upon a project in which you will derive financial gain, you may need to consider publicity rights. Unlike most other privacy rights, sometimes publicity rights survive an individual’s death, such that a person's estate may enforce them even if the person is no longer alive. Further, remember that the right of publicity is a protection independent from copyright. Thus, even if photographs of a famous historical figure may be in the public domain, that person’s estate may still choose to enforce publicity rights against unauthorized commercial appropriation of their likeness.

Ethical considerations

What do you do with research data and findings that are not technically private, but you feel might be sensitive? You may want to evaluate how or whether to publish certain materials digitally if sharing such materials could lead to exploitation of people, resources, or knowledge. For example, you may determine not to publish materials if there is substantial concern that disclosure of geographic locations or persons could put the materials at those sites or particular individuals at risk. Alternatively, perhaps your scholarship could threaten the safety of individuals who could be punished for having spoken out against a political regime.

Strategies for addressing ethics

There are a variety of strategies to navigate questions of ethics in research and publishing your scholarship. For example, you could: 

• Consult journal publications or professional association guidelines.
• Develop local best practices (for instance, you could conduct decision-making within your research group).
• Impose access controls (e.g. user registration to view; publish only data visualizations or extractions), but you’d need to consider the intersection with any publisher open data requirements.
• Undertake community engagement to consult with affected populations, and ensure that benefit reverts back to the communities.
• Seek institutional review board (IRB) involvement/approval, even if none is technically required. Of course getting IRB review and approval for research that ordinarily doesn’t need approval can slow down the research process. 
• Adopt a new ethics/privacy paradigm (for example, moving from consent-based to harm-avoidance). 

Ethics readings

If you’d like to learn more about options to address ethics in connection with digital scholarship, these resources may help:

• Benefit-Risk Analysis for Big Data Projects
• Elements of a New Ethical Framework for Big Data Research
• Applying an Ethics of Care to Internet Research: Gamergate and Digital Humanities
• Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research
• Beyond the Belmont Principles: Ethical Challenges, Practices, and Beliefs in the Online Data Research Community
• The Ethical Challenges of Publishing Twitter Data for Research Dissemination

How can you manage your own rights?

Now that you understand how to include others’ works into your dissertation or thesis, you have some decisions to make about how you want to share your completed work. We explain this in greater detail in our Managing copyright section. 

If you are a Berkeley graduate student, your dissertation will be made available through ProQuest and/or published open access online in eScholarship and discoverable via the Library's catalog. You should think about the following questions before submitting your dissertation or thesis. 

• Should I register my copyright with the U.S. Copyright Office? As a Berkeley student, in most cases, you automatically own the copyright in your dissertation or thesis. However, registering copyright in your dissertation offers certain distinct advantages: It provides public record that you are indeed the author and owner, and also enables greater enforcement of your rights against infringers or plagiarists.
• Should I embargo my dissertation? Making your work available to be read online immediately has many advantages. Not only does it establish when your work was created and published (which can help combat plagiarism), but also it can help build your academic reputation. There are circumstances, however, that would warrant an embargo — such as situations where there would be disclosure of patentable rights or there are ethical concerns, or a book/journal publisher has demanded it. You should consult guidance from your advisors about when embargoes are recommended. Here are UC Berkeley’s guidelines on embargoes.
• Should I share my dissertation or thesis under an open license? As with any other copyrighted work, other scholars can make fair uses of your dissertation or thesis in their own research. You can also decide to license your work beyond what fair use allows by applying a Creative Commons license to it. This should be a careful decision, which you discuss fully with your dissertation advisors and journal or monograph publishers in your field.

Learn more

View the “Copyright & Your Dissertation” presentation and video below, or contact our office for more help. 

Text data mining

Text data mining (sometimes called “text and data mining,” and abbreviated as “TDM”) describes a research approach in which scholars use automated methods to identify, extract, and analyze patterns and trends in large volumes of digital content. Often, this involves downloading or compiling copyright-protected text to build a collection of materials (called a “corpus”) for the project. How do the Copyright basics and our Digital Publishing Workflow apply when you’re conducting text data mining? Are there any special considerations?

Here’s what you need to know.

Copyright and fair use

Courts have largely determined that using automated mining techniques to conduct scholarly research constitutes fair use. (You can read more here: Author's Guild v. HathiTrust, 755 F.3d 87 (2d Cir. 2014)). 

However, sometimes researchers seek to publish from or circulate the copyright-protected corpus they’ve compiled — either to allow other researchers to validate the algorithms applied, or to enable different research queries entirely. Publishing large portions of a copyright-protected corpus, or circulating the entire corpus to other scholars, can push the limits of what constitutes fair use: All of a sudden, the corpus could be considered a market substitute for other researchers who now do not need to purchase or license the underlying works.

Therefore, when conducting TDM, it’s important to understand the difference between compiling and working with a corpus to undertake the research (i.e. what's considered fair use) and distributing or publishing the copyright-protected materials (i.e. what might exceed fair use).

Remember, though, not everything is protected by copyright, so in some cases you don’t need to worry about whether republication is fair use. If the materials you’re mining have entered the public domain, or are facts (e.g. statistics, citations) rather than expressive content protected by copyright, you don't have to ask whether your use is fair use when republishing that content.

If you have questions about how fair use fits into your plans for text data mining, we can help you understand the issues.

License agreements and terms of use

Copyright isn't the only legal question you may need to consider. If you’re using a corpus of materials from a library-licensed database or other online resource, there may be contractual arrangements or terms of service in the license agreements that the library has signed, or in the source website’s terms of use, that override your ability to rely on fair use. 

For instance, let’s say you want to scrape content from a database that the Library has licensed. Some of our agreements allow this, and some don’t. Using programmatic tools to scrape database search results can breach the agreement, and could also result in database access being shut down for the entire campus.

Two more rules of thumb: 

1. If you’re downloading or mining content from a library-licensed database, what matters is not the generic Terms of Use you find online for that database, but the license agreement that the library actually signed with the database provider. You should check out this guide regarding library license agreements and text data mining. Read any license agreements or website terms of use carefully to make informed decisions about how to proceed. If you have questions about the Library’s database or license agreements with regard to TDM, e-mail tdm-access@berkeley.edu.
2. Even if the terms of use for the website or database restrict or prohibit text mining, the provider may offer an application programming interface, or API, with its own set of terms that allows scraping and TDM. You could also try contacting the provider and requesting permission for the research you want to do.

Privacy and ethical considerations

Other digital scholarship workflow questions remain equally important with text data mining. 

Even if you’re not mining highly-protected health data, mining certain types of social science or humanities data could still violate federal or state privacy laws. But it’s important to know that there are legal exceptions (like newsworthiness, public interest, and time limitations) that support TDM research. You can also consider seeking the subjects' consent. Note that collecting voluntarily-released data from the subject (e.g. a person's public Tweets) does not violate privacy rights, but may present ethical questions.

When it comes to ethics, there’s a continuum of actions you could consider with increasing degrees of commitment. We discuss these more here. 

Special use case: Digital rights management

Are you looking to conduct TDM on e-books or DVDs? These materials may have an added technological protection layer of “digital rights management” (DRM). You’ll need to consider whether you can circumvent or “break” that DRM to build your corpus.

Ordinarily, circumventing DRM to access copyright-protected content is prohibited by the Digital Millennium Copyright Act (DMCA). The effect of this DMCA prohibition for TDM research was that: Even if it were a fair use to mine the underlying content, fair use did not include breaking the DRM to get to that content for mining.

Fortunately, in October 2021 a narrow exemption to the DMCA was created for the purpose of conducting TDM on motion pictures (DVDs) and ebooks. In order to make use of this exemption to conduct TDM, you must meet several conditions:

1. The circumvention needs to be conducted by a researcher at a nonprofit institution of higher education. (Note: As a UC Berkeley faculty, staff, or student, you satisfy this criterion.)
2. The copy of each motion picture or e-book must be lawfully acquired and owned/licensed by the institution in perpetuity. (Note: If you are using UC Berkeley library-owned or perpetually-licensed materials, you satisfy this criterion. If you are assembling your own corpus, institutional funds should be used and the materials would need to be property of the university.)
3. The individual circumventing the DRM may only view the contents for the purposes of verifying the TDM research results. 
4. The institution must apply effective security measures to prevent downloading or dissemination of the copyrighted materials. (Note: You should coordinate with Research IT, the Research Data Management Program, or the Library to satisfy this factor.)

There’s one more critical caveat to know before relying on this DMCA exemption to break DRM for your TDM research: The DMCA makes breaking DRM lawful for TDM from a copyright perspective, but as with all other issues in U.S. copyright law, a contract or license agreement may override what the DMCA permits in this regard. That means that if the university or library acquires or licenses e-books that are subject to license agreements that prohibit breaking DRM, it could be a breach of contract to proceed with the research even if the DMCA otherwise permits it.

We can help you understand what the license agreements permit, so if you’re planning a TDM research project in which you’d like to be able to take advantage of this DMCA exemption, please get in touch.

Learn more 

We’ve created a variety of resources to help you understand all of these legal and ethical issues more in your TDM research. See this comprehensive guide.

In 2020 the UC Berkeley Library hosted Building Legal Literacies for Text Data Mining. The institute welcomed 32 digital humanities researchers and professionals to empower them to confidently navigate law, policy, ethics, and risk within digital humanities text data mining projects.

To maximize the reach and impact of the institute, we published a comprehensive open educational resource (OER). The openly licensed ebook covers copyright (both U.S. and international law), technological protection measures, privacy, and ethical considerations in text data mining. We’ve also compiled an extensive reading list, as well as educational videos, slides, and transcripts from the institute.

20-minute overview

If you’ve got only 20 minutes and would like a video to talk you through it all, check this out on our YouTube channel or simply watch below. 

AI

How does copyright affect what researchers can do in using or training artificial intelligence (AI) in their scholarship? What should researchers know about their rights and responsibilities in using library-licensed materials for AI use?

Read on for a deeper exploration into these topics, and contact us at schol-comm@berkeley.edu if you have questions or would like to set up a consultation. 

How is AI being used in computational research?

There are different flavors of AI, including generative and non-generative (sometimes called “analytical”) AI, that can support computational research.

Generative artificial intelligence allows users to input a prompt and the platform generates new content. Tools include chatbots such as ChatGPT and Gemini, StabilityAI and Dall-E for images, Sora for video, and many others. 

While generative AI may be in the headlines, non-generative AI is nothing new. Scholars have relied upon non-generative AI for many years to, among other things, extract information from copyrighted works as part of text and data mining (TDM Research) processes. 

Not all forms of TDM research need to rely on AI to extract this information. For example, imagine an academic researcher studying the representation of firearms in cinema. In order for the scholar to assess how common guns are in films, and the types of circumstances in which they appear, they have to find instances of firearms in thousands of hours of movie footage. To do that, the researcher needs an algorithm to search for and identify those firearms. But first they have to present to an AI tool what a gun looks like by showing it some pictures or film stills of guns. This way, the AI tool can learn how to identify a gun before it then goes off and looks for other instances of guns in a much larger body of movies. This is a classification technique that involves AI, but not generative AI, as the AI is not creating new images or footage of guns as part of the research. Scholars have relied on this kind of non-generative AI training within text data mining for a long time under copyright’s fair use doctrine.

Copyright implications for AI

As we explained in the Copyright Basics section, copyright owners get exclusive rights to make reproductions, distributions, displays, performance, and to create derivative works. And they get these exclusive rights for a long period of time. During this time of copyright protection, no one else can make reproductions, distributions, display, etc. at all unless they get permission in the form of a license from the copyright owner, or unless the intended use someone wants to make falls into an exception to these exclusive rights. 

This matters for TDM research that is reliant on AI because: if a researcher wants to mine a corpus or train an artificial intelligence tool on a corpus, they’ll need to download copyright-protected works. That counts as reproduction. Also, if the researcher wishes to work with colleagues on the AI project, they would be sharing the works. That counts as distribution. 

Therefore, unless the AI usage falls into an exception like fair use, the researcher could be violating one or several of the copyright holder's exclusive rights. Fair use enables the use of copyrighted works without permission in certain instances like scholarship, research, and teaching.

Fair use and training of AI for research and teaching

The good news is UC Berkeley scholars should be able to rely on fair use to perform the component acts of computational research with or without AI. 

Previous court cases like Authors Guild v. HathiTrust, Authors Guild v. Google, and A.V. ex rel. Vanderhye v. iParadigms have addressed fair use in the context of computational research and confirmed that the reproduction of copyrighted works to create and conduct text and data mining on a collection of copyright-protected works is a fair use. And for the same reasons that the TDM processes constitute fair use of copyrighted works in these contexts, the training of AI tools to do that text and data mining is also fair use: the AI is being trained for predictive and analytical purposes, thus similarly transformative (and further bolstered by being undertaken in nonprofit scholarly or educational contexts); and training AI does not reproduce or communicate the underlying copyrighted works to the public, precluding market supplantation. While these particular issues haven’t been decided yet in the context of research with generative AI, these legal precedents suggest that training AI—whether non-generative or generative—is a fair use.

That being said, the determination of transformativeness and the overall fair use of generative AI outputs cannot always be predicted in advance. The mechanics of large language models suggest that there are limited instances in which generative AI outputs could indeed be substantially similar to (and potentially infringing of) the underlying works used for training; this substantial similarity is possible typically only when a training corpus includes numerous copies of the same work.

License agreements and terms of use

As we outlined in the Text Data Mining section, one key non-copyright legal issue that often comes up in the context of scholarship is contract law. If you’re using a corpus of materials from a Library-licensed database or other online resource, there may be contractual arrangements or terms of service in the license agreements that the library has signed, or in the source website’s terms of use, that override your ability to rely on fair use. 

The UC libraries can’t control the terms of use on public websites that you wish to use for TDM and AI research; you should always check those terms to see what’s allowed. At least for Library-licensed resources, we try not to let the agreements we sign override fair use. We advocate for language in all our licenses to protect the ability for our users to use materials under Section 107 of the copyright law (fair use rights).

UC President Michael V. Drake and UC System Provost and Executive Vice President for Academic Affairs Katherine S. Newman reaffirmed the statement of support on the UC Libraries’ Negotiations with Publishers Regarding Fair Use, Text and Data Mining, and Artificial Intelligence Usage Rights, issued by the Academic Senate University Committee on Library and Scholarly Communication (UCOLASC) and unanimously endorsed by Academic Council.

The terms of our agreements can vary.  Before you use any Library-licensed databases or data sources for TDM and AI, see the Library’s web page on use and licensing restrictions for electronic resources and contact us with any questions. 

Privacy and ethical considerations

Copyright and license agreements are not the only things scholars need to consider when using AI. To address issues of privacy, ethics, and the rights of publicity (which govern uses of people’s voices, images, and personas), we have advocated for the development of best practices, private ordering, and other regulations concerning use of works in AI tools and training.

For instance:

• As to best practices, scholar Matthew Sag has suggested preliminary guidelines to avoid violations of privacy and the right to publicity.
• Private ordering would rely on platforms or communities to implement appropriate policies governing privacy issues, rights of publicity, and ethical concerns. For example, the UC Berkeley Library has created policies and practices (called “Responsible Access Workflows”) to help it make decisions around whether—and how—special collection materials may be digitized and made available online.
• Concerning regulations, countries like those in the European Union have recently ratified an AI training framework that requires, among other things, the disclosure of source content, and the rights for content creators to opt out of having their works included in training sets except when the AI training is being done for research purposes by research organizations, cultural heritage institutions, and their members or scholars. The United States Copyright Office is also considering how and whether to regulate AI usage, and could potentially use the European Union as a model. We will update campus and this page with any such regulations.

Learn more

The UC Berkeley Library has taken a nationally-leading role in supporting scholars’ rights to utilize AI in their research and instruction. To understand the law and policy landscape better, you can check out some of the other resources we’ve created:

• UC Berkeley Library to Copyright Office: Protect fair uses in AI training for research and education 
• Fair use rights to conduct text and data mining and use artificial intelligence tools are essential for UC research and teaching
• Licensing research content via agreements that authorize uses of artificial intelligence
• Coalition for Networked Information Fall 2023 Member Meeting Closing Plenary
   

Small claims

In 2020, Congress passed a law called the “Copyright Alternative in Small-Claims Enforcement Act of 2020,” known as the “CASE Act.” The CASE Act mandated the formation of the Copyright Claims Board (CCB), a tribunal operating through the U.S. Copyright Office instead of the federal judicial branch, for the purpose of deciding “small claims” copyright infringement actions via a quicker, less expensive process — that is, without all of the procedural requirements of a normal federal court case. Damages are capped at $30,000 for CCB cases. 

This page is for UC Berkeley faculty, staff, students, and scholars who might one day find themselves in receipt of a notice that a CCB action has been filed against them. The University of California also has a systemwide information page for UC-affiliated scholars, students, and employees.

Please note that the U.S. Copyright Office is still creating the rules that implement this new law, so the information on this page will evolve. And as with all information on our website, our office cannot provide you with legal advice. However, we can help you understand how the law works. If you have further questions, contact us at schol-comm@berkeley.edu. 

If you receive a claim notice

What will a notice look like?

If you live in California, then a genuine CCB claim notice is required to be “served” to you either in-person (i.e., handed to you) or by U.S. mail. If you have received only an email, you should be wary of its contents because email is not considered valid “service of process” in California.

A genuine CCB case notice will include a docket number and other information yet to be determined. The notice will have a link to the CCB website, where you can enter the docket number on your notice, view information about the particular claim filed against you, and take various actions. 

What does it mean?

A claim filed against you in the CCB means that a purported copyright owner is asserting that you have infringed their copyright through something you have uploaded, reproduced, published, created, distributed, performed, or displayed.

The notice you receive signifies that the claimant has alleged copyright infringement, but the notice does not mean you have actually infringed or that the CCB will ultimately determine you have infringed. 

Indeed, there are many reasons why your use of a copyrighted work may not be an infringement. For instance, there are key exceptions to copyright law that support teaching, scholarship, and research — most notably, fair use. These exceptions provide complete defenses to claims of infringement or, in some instances, permit a significant reduction of damages. Further, not everything is actually protected by copyright. Claimants may believe they hold copyright in materials that are not subject to copyright (e.g., because the materials reflect only facts or ideas) or are no longer protected by copyright (e.g., because the copyright in the materials has expired). Claimants may also believe that they hold copyright to materials for which copyright is actually held by a third party. 

If you believe one of these situations applies to you — that is, that your use of the material is protected by an exception or that the allegations in the claim are not valid — you may wish to dispute the claim or opt out of the CCB proceeding entirely. We explain your options below. Regardless, we recommend you seek legal counsel as soon as possible after receipt of a CCB case notice.

What are your options?

If you receive a properly-served notice, do not ignore it. If you ignore it and do nothing, the case will proceed in the CCB, and a default judgment can be entered against you. This means that the CCB can enter a judgment holding you responsible for all the damages claimed in the notice (up to $30,000), regardless of whether the assertions are true or whether you could have claimed any defenses.

To avoid a default judgment, you will need to respond in the time prescribed by the notice. You can choose to respond in one of two ways:

• Proceed within the CCB tribunal. If you proceed, the case will be heard by the CCB. The CCB predicts that most cases will be handled completely online, so you will not need to travel to Washington D.C. (where the U.S. Copyright Office is physically located). You will be bound by the CCB’s decision. If the claimant wins, you may have to pay up to $15,000 for each infringed work, with a maximum cap of $30,000. CCB determinations are final. There are only limited circumstances — such as fraud, corruption, and misrepresentation — when a CCB determination can be reviewed by a federal court or the Copyright Office.
• Opt out of the CCB proceeding. It’s important to understand that, if you opt out, the copyright claimant cannot restart the same claim against you in front of the CCB. So, if you opt out of the CCB, the claimant can either stop pursuing the matter entirely or decide to file suit against you in federal court (assuming they meet all of the federal court filing requirements). Federal court is more expensive and complex than the CCB’s small claims process, so many small claimants may not want to incur the expense or may feel that their allegations will not survive scrutiny in federal court. Also, UC employees likely have broader protections in federal court than in the CCB, so a timely opt-out may be a good option. 

If you decide to opt out, you must mail the paper opt-out form provided with your notice, or complete an online opt-out form on the CCB website, within 60 days of service. Note that in California, additional time may be added to the deadline for your response if service of the notice to you was made by mail, pursuant to California rules for service of process. 

Note that if you decide to opt out, your decision applies only in response to that particular claim you received. As an individual (as opposed to certain organizations), you cannot opt out prospectively from all future CCB claims.

Where can you get help or more information?

If you’re a UC Berkeley student, staff, or faculty member, and the claim is related to what you do at UC, contact the UC Berkeley Office of Legal Affairs or UC’s Office of General Counsel promptly.

The UC Berkeley Office of Scholarly Communication Services can also answer questions about how the law works, but cannot dispense legal advice to you. You can contact us with questions at schol-comm@berkeley.edu.

The U.S. Copyright Office provides additional information on their Copyright Claims Board Frequently Asked Questions page.

Library permissions

Looking to use or publish with works in the Library’s collections? You’re in the right department!

Looking for a license? You may not need one.

As outlined in the Library’s Permission Policies, if you believe your use is a fair use, or the work is in the public domain, a license from the library is not required and will not be provided.

Otherwise, our office handles all requests to license works that are both 1) held in the Library’s collection, and 2) copyright by the UC Regents. 

If you do need a license, what should you do?

To obtain a license to use a work held in the collection of The Bancroft Library, please follow the instructions found on their Duplication & Permission Services online guide.

To obtain a license to use a work held in the collection of the University Library (excluding The Bancroft Library), please submit your request using our Permission to Publish Request and Agreement form.

Questions? E-mail schol-comm@berkeley.edu. 
 

FAQ

Do I own copyright in works I create at UC Berkeley?

In most situations, if you’re a faculty or student author, you hold copyright in your scholarly works. There are some exceptions to this general rule. The University of California’s Copyright Ownership Policy and Ownership of Course Materials Policy clarify who owns the copyright to original works created at UC.

I’m having trouble making a fair use decision. Can you help?

If you are a UC Berkeley faculty, staff, or student, we can explain how fair use works, answer questions, and offer resources as you work through the four factors, described in our Fair Use section. Ultimately, though, the determination of whether your use is a fair use must be made by you. The Library cannot make a decision for you.

I’m citing my sources, so I don’t need to get permission to include excerpts of text or images, right?

Attribution is separate from permission. You need to cite your sources, but this is separate from the question of whether you need a rights holder’s permission to include excerpts of those sources to begin with.

Remember that copyright holders have exclusive rights to reproduce, distribute, display, etc. their works. If you want to reproduce still-in-copyright works, you’ll need to decide whether your use is a fair use, or get the copyright holder’s permission. See the Copyright Basics section for more information.

Is a work in the public domain if I find it online?

Publication online implies nothing about whether the work is in the public domain. When content is in the “public domain,” it means that the work is not protected by copyright (usually because the copyright has expired, or the work was never subject to copyright in the first place). 

Content that simply appears online — and thus is publicly accessible — may very well be copyrighted, and thus you must comply with copyright law when using it. See the Copyright Basics page for more information.

Do I need permission from a copyright holder if I’m just linking to their content rather than republishing it?

No. In the U.S., it is not an infringement to link to content that has been uploaded lawfully. That’s because linking does not invoke any of the exclusive rights of copyright holders when you merely direct others to a lawfully distributed or displayed copy of a work.

If, however, you have reason to believe that the content you’re linking to was uploaded in violation of copyright, then you should not link to it. Doing so could be construed as contributory copyright infringement. 

Do I need permission to republish work that I authored?

Maybe. If the work that you want to use is something you previously wrote and published, you may no longer hold copyright over it if you assigned copyright to, say, a journal publisher. See the Managing Your Copyrights section for more information on your author rights.

Separately, UCB Graduate Division’s Filing Guidelines also impose their own requirements. If you plan to use your own previously published and/or co-authored material in your dissertation or thesis, you must request permission to do so from the Dean of the Graduate Division. See the Dissertations and Theses section for more information.

If it was fair use to re-use a copyrighted work in my dissertation, is it fair use to publish it in a journal article or a book?

Not necessarily. One of the four fair use factors takes into consideration whether your use is for nonprofit educational purposes. If you were to publish a book where you earn royalties, the commercial nature of the endeavor may weigh against fair use for that factor. You’ll need to re-evaluate your fair use analysis if you’re publishing a manuscript in a commercial fashion, and determine whether you need permissions to incorporate others’ copyrighted works.

Keep in mind, too, that your publisher may — as a matter of policy to protect itself — want you to obtain permissions irrespective of whether you believe your use would have been fair use. See the Publishing and Rights Issues section for more information.

I have more questions. Where can I get help?

Please contact our office at schol-comm@berkeley.edu. While we cannot provide legal advice, we can help explain these issues in greater detail.