We’ve recently had some questions regarding the ability to provide access to dissertations, theses, and other cataloged graduate work. How does the law govern these questions?
Many college and university libraries make it a practice to bind and inventory the academic work of their graduates—a tradition that showcases the achievements of the institution, maintains an important bond between the library and the faculty (who often sign the final copy, to signify approval), and allows graduates to cite and showcase their work. These collections are often honored institutional assets: a neatly reproduced, annually increased, and routinely cataloged series of books occupying a special space in the library.
(When a graduate later becomes famous, they can also pose a persistent and annoying theft risk…but that is not the topic at hand!)
With the dawn of the digital age now at high noon, some college and university libraries are also including these home-grown works in home-grown databases. This requires a digital infrastructure that not all academic libraries can afford or support, though, so for many, the old-school binding and shelving of graduate work is still the default practice. Many institutions are now also considering whether or not to digitize their back catalog, and of course are also seeking ways to promote, provide and oversee appropriate patron access to what they have.
Overall, these “old school” copies can pose an interesting access challenge. They are generally listed in the library’s catalog, and considered a part of the active collection. But what rights does the institution have to them? How is access to them governed by copyright law, which often depends on the distinction between “published” and “unpublished?” Can they circulate, be accessed via inter-library loan, be reproduced for archival purposes, or be digitized? How much can the original author—now an alum—control them?
To answer this, I must use the phrase that is the lawyer’s most trusted companion: it depends.
We’ll take the relevant factors in order of appearance:
First, it is important to confirm: the work of a student, even if directed and overseen by a faculty member or faculty committee, is owned by that student. Student-generated work*, even if the topic was suggested by someone else, and even if the content is vigorously critiqued by someone else (and then presumably re-written), is an “original work of authorship,” and the moment it is “fixed in a tangible medium of expression,” it is owned by the author (the author). Of course, the student can sell the ownership, or donate it—but unless that transfer has been recorded in writing, it remains theirs…and then their heir’s…for the life of the author, plus 70 years.**
Second, generally, the permission to reproduce the academic work is a creature of a contract between the author (the student) and the institution (the college or university). This permission can run the range from a completely unlimited license of all the rights of copyright (to reproduce, distribute, perform, display, create derivative works), to a very limited license (to make one hard copy and add it to the catalog). This permission might be revocable, or irrevocable. It might be exclusive, or non-exclusive. It could even make use of Creative Commons licenses to create a very liberal mode of access. Critically, though…these terms can vary from institution to institution, from year to year, from student to student. There is no bright line rule.
Third, depending on the extent of the license, and other factors, the thesis or dissertation may, or may not, be “published,” as that term is defined under the Copyright Code. The ability to replicate, digitize, and create archive copies under Section 108 will be governed, in part, by publication status. Section 108 is a great asset for libraries and archives, often allowing duplication of entire articles and works…but it requires the well-documented alignment of precise factors. [NOTE: A copyright registration that included the date of publication would take care of this factor. Some institutions and authors do register these works…and if they are put in the catalog for lending, registration should be effected before circulation begins, since to do otherwise could compromise the author’s rights].
Fourth, and finally, the policies of the college or university will govern access, too. There could even be a day when an aged alum, having lost their treasured copy, may show up demand access to the library’s…only to be told that although they are without a doubt the copyright owner, they have to fill out a form, or renew their card, or wait until the Reference Librarian is back from break, so they can access their work.
That said, they are the only one who might not have to do a 108 analysis before making a copy!
*Work that is actually co-authored by a faculty member and a student is subject to the rules of co-ownership.
**As you know, copyright duration varies. A great breakdown of how to calculate duration is here: https://www.copyright.gov/circs/circ15a.pdf