FAQs

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

I'm citing my sources, so I don't need permission to include excerpts from them, right?

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

Do I need permission to link to content rather than include it?

I was the author of the work I want to use, so do I still need permission to use it?

Am I allowed to make multiple books/articles out of my dissertation?

If it was fair use to publish a work in my dissertation, is it fair use to publish it in my first book?

Are unpublished archival materials protected by copyright?

Are unpublished foreign works protected by copyright?

How long are published foreign works protected by copyright?

 

 

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

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

So, if you have questions about how fair use works or want more resources, please contact us.

For additional assistance making fair use determinations, check out:

In particular, we recommend Columbia University's Fair Use Checklist tool linked above, because it can also help you keep good records of your fair use decision-making.

 

I'm citing my sources, so I don't need permission to include excerpts from them, 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 from or copies of those sources to begin with.

Remember that copyright holders have exclusive rights to (among other things) reproducing the work. If you want to reproduce still-in-copyright work, you'll need to decide whether it's fair use or get the copyright holder's permission. See the Copyright Basics tab for more info.

 

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

Publication online implies nothing about whether the work is in the public domain. Content that appears online--and thus is publicly accessible--may very well be copyrighted, and thus you must comply with copyright law when using it.

"Public domain" instead refers specifically to work that no longer is entitled to copyright protection (i.e. the copyright protection expired), or works for which copyright protection was never available (e.g. U.S. Federal Government works, facts/ideas, etc.). See our discussion of the public domain on the Copyright Basics page for more information.

 

Do I need permission to link to content, rather than include it?

No! In the U.S., it is not an infringement to link to content that has been uploaded lawfully.

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 infringement. In those circumstances, work through Workflow Step 1 questions with respect to use of legitimate copies of the content, rather than linking to infringing online reproductions.

 

I was the author of the work I want to use, so do I still need permission?

Maybe. If the work that you want to use is something you previously wrote, you may no longer hold copyright over it if you assigned copyright to a publisher--making it important to go through Step 1 questions.

Separately, the Graduate Division's Filing Guidelines also impose their own requirements if you wish to use your previous publications. 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--as set forth in the UC Berkeley Dissertation Writing and Filing guidelines.  

 

Am I allowed to make multiple books/articles out of my dissertation?

As copyright holder of your scholarship, you're entitled to make derivative works and adapt or rearrange your work as you see fit. Though, a journal may want you to edit your work a bit to make it something different for the journal iteration. Every version or adaptation of your work is a separate work in which you hold copyright.

Keep in mind, though: If you publish journal articles that are merely excerpted from your digital project without modification, you should be careful about assigning copyright to the journals. If you later wish to reuse the same language in, say, a manuscript for a book, you don't want to have transferred your rights to that iteration.

 

If it was fair use to publish in my dissertation, is it fair use to publish it in my first book?

Not necessarily.

For instance, one of the fair use factors takes into consideration whether your use is for non-profit educational purposes. Once you begin publishing a book and earning royalties, the commercial nature of the endeavor may weigh against fair use for that factor. You'll need to undertake Step 1 analysis again in its entirety when it comes time to publish your manuscript commercially, and determine whether you need permissions.

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 use would have been fair without permission.

 

Are unpublished archival materials protected by copyright?

If they contained authored, original expressions, they were, and maybe still are, protected by copyright. But like any other copyrighted work, they may have entered the public domain. 

Unpublished works are subject to copyright protection. However, the duration of copyright for unpublished works can differ based on whether they are signed, anonymous, etc. For more on copyright length for unpublished works, consult the discussion of Unpublished Works (Ch. 3.2.1) in Peter Hirtle's Copyright & Cultural Institutions book; see also 17 USC §§ 302, and 303

Keep in mind, too, that while unpublished works are not excluded from your use as fair use, what constitutes fair use of unpublished works may construed more narrowly by a court. 

 

Are unpublished foreign works protected by copyright?

They were at some point. Whether they still are depends.

The length of protection in the U.S. for unpublished material is the same regardless of where the work was created, or what nationality the author was (17 USC § 104). If the copyright term for the unpublished work has expired, it's in the public domain for purposes of publishing your dissertation in the U.S.

 

How long are published foreign works protected by copyright?

If you're looking to use foreign works in your dissertation being published in the U.S., the general rule of thumb is that anything first published in a foreign country prior to 1923 has entered the public domain, and most everything else published abroad since then remains protected by copyright.

The more complex answer is that, for foreign works: Based on the nationality of the author and place of publication, one can calculate whether the foreign material has entered the public domain. Though, you don't have to--you can use the wonderful Cornell University Public Domain chart prepared by Peter Hirtle. Check out the section "Works First Published Outside the U.S. by Foreign Nationals or U.S. Citizens Living Abroad."