Source: mbidp.mbi.ucla.edu
Source: mbidp.mbi.ucla.edu

A pattern is starting to develop.

Here’s how it goes: first, a scholarly organization makes a statement saying that authors in its field ought to be able to decide for themselves, within limits, whether and for how long their dissertations will be embargoed from public access. The statement is then publicly mischaracterized in the formal press, the blogosphere, and across social networks. The mischaracterizations then go viral, leading to a low-grade moral panic.

This is what happened in the wake of just such a declaration made this past summer by the American Historical Association (AHA); I discussed that statement and the responses to it in an earlier TSK posting.

Now comes word of a new and very similar statement, this one issued by the Organization of American Historians (OAH).  And the cycle of mischaracterization and panic has begun again, with a piece by Scott Jaschik in Inside Higher Education. The headline calls the OAH’s statement “Another Push for Embargoes,” which manages to be wrong twice in the course of four words. The OAH’s statement is not a push for embargoes, but a push for authors to be given the choice whether or not to embargo. Nor, if it were a push for embargoes, would it be “another” one—the AHA’s earlier statement was not a push for embargoes either.

Jaschik’s third mischaracterization of the OAH statement comes in his first sentence: “The Organization of American Historians announced Tuesday that it opposes requirements—being embraced by some universities—that all doctoral dissertations be shared online.” In fact, the OAH says the opposite:

The OAH Executive Board strongly supports the right of authors to make their own decisions about the manner in which their doctoral dissertations will be published and circulated. The board urges history departments and graduate school administrations to support that right without qualification, understanding that embargoed dissertations will be available for public consultation upon the expiration of the designated embargo period.

Note the very important final phrase of that paragraph (emphasis mine). The OAH appears to accept—indeed, to take it as given—that doctoral dissertations will eventually be shared publicly. What it urges in this statement, much as the AHA did in its own, is that “advisers and students. . . consult with each other about the advantages and disadvantages of embargoing a dissertation, leaving the final decision entirely to the individual student.”

There are two issues here, one of them relatively superficial and the other more fundamental and significant. The superficial one is the unwillingness of many commentators to accept or even acknowledge the existence of both “advantages and disadvantages” when it comes to dissertation embargoes. This unwillingness is what leads to outrage in the blogosphere and Twitterverse whenever an organization like the AHA or the OAH publicly suggests that students should have the right to choose how and when their work will be publicly distributed.

The deeper issue, however, is a longstanding one that this repeating cycle of debate may finally force academia to confront and resolve: it is the question of who owns the intellectual work created on campus.

In most contexts, intellectual work created during the normal course of one’s employment is considered a “work for hire” under copyright law, and it remains the property of the employer. This will usually be the case for such intellectual products as internal policy documents, memos, instruction manuals, white papers written on behalf of a company, etc. On most college campuses, however, faculty members who write articles and books as part of their employment retain the copyright in their work. This makes academia quite unusual: in very few employment situations does the employee retain copyright in work created in the course of performing his or her job duties.

Some campuses, however, are moving in the direction of asserting ownership over their faculty’s work. Often, this move takes the form of the institution asserting copyright over the faculty’s work, then automatically assigning it back to the faculty member. The functional result is the same—the faculty member may do as she wishes with her work—but it gives the institution the option (in theory at least) of deciding to retain copyright and therefore control.

The growing debate surrounding control over dissertations brings a new dimension (and new urgency) to this long-simmering issue, because dissertation authors are students, not faculty members. On the one hand, one might see a move to take control of dissertations as even less reasonable than a move to take control of faculty members’ work, since students are not employees—except that, in reality, graduate students almost always are employees of the university in addition to being students. An argument can be made (and a respected colleague recently made it in conversation with me) that theses and dissertations are always produced as the result of significant institutional investment: the student may have written the document, but he did so with significant support from the university. A dissertation, therefore, is not the same thing as a book written by an amateur or unaffiliated professional at home. It is, in some meaningful ways, a product of the institution.

This is not a bad argument. A college or university that wishes to assert control over the theses and dissertations produced on its campus can probably do so with some justification. But the question of whether such a move could be logically, morally, and legally justified is very different from the more pressing and relevant question, which is whether such a move would be wise.

Why might it not be? The most obvious reason, I think, is that any college or university that does assert real control over its faculty and students’ intellectual work is going to put itself at a competitive disadvantage with those institutions that allow their students and faculty to keep control over their work. Institutions looking to attract top faculty and students will find a liberal intellectual-property policy to be a very low-cost way of increasing their advantage—certainly cheaper than hiring a trailing spouse, building a lab, or boosting a salary offer.

“Now wait,” I can hear some readers responding. “Sure, giving faculty the right to publish wherever they want and giving students the right to embargo their dissertations may be cheap in the short run, but it’s expensive in the long run because it perpetuates the current, unsustainably expensive scholarly communication system.”

That may be true. But short-term gains are very easy to see, and long-term risks are harder to see. It’s also true that every long-term risk scenario is only one possible scenario among many. In my experience, colleges and university administrators are much more concerned—for better or for worse—with attracting top faculty and students in the short run than they are with changing the world of scholarly communication in the long run. To the degree that that’s truly the case, defusing that competitive dynamic would require a universal commitment on the part of colleges and universities to the principle of asserting ownership over faculty and student work. And the likelihood that 100% of colleges and universities will agree to forego a very real competitive advantage in the name of changing the scholarly communication system strikes me as very, very low. Nor does there seem to be widespread enthusiasm for such a move on the part of faculty themselves. It’s faculty members, after all, who wrote and unanimously supported the statement issued by the OAH.

Rick Anderson

Rick Anderson

Rick Anderson is Associate Dean for Collections and Scholarly Communication in the J. Willard Marriott Library at the University of Utah. He speaks and writes regularly on issues related to libraries, scholarly communication, and higher education, and has served as president of NASIG and of the Society for Scholarly Publishing.

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Discussion

40 Thoughts on "Whose Dissertation Is It, Anyway?"

Interesting piece Rick. I wonder if the unionization of graduate students at so many research universities, especially at public institutions but also at several private universities, bears on this analysis to any degree.

Good question, Roger. I’m not aware that this issue has arisen in the course of unionization processes and negotiations, but I imagine it will if it keeps popping up on the radar the way it has over the past year.

It seems to me that the dissertation is the property of the author. Why wouldn’t it be? I do not believe the mandate to make the dissertation public would stand up in court and am sure it will be challenged.

Seems to me that what is being proposed is the result of those with their heads in the clouds!

Not a simple matter – often a question of who funded the project and who owns the data and the fact that students usually do not work alone but are part of larger projects at their universities – so it is rarely an individual decision. Some government funding sources require the data be in the public sphere. Universities that encourage students to at least prepare, if not publish three (or more) articles as part of their final dissertation are already putting the work in the public sphere. Unless the student has no interest in future academic or professional pursuits, she/he is unlikely to hide the dissertation, but get a foot up in the publishing world quickly.

Most funding agencies have pretty clear policies on intellectual property. For the US Government, the Bayh-Dole Act (https://en.wikipedia.org/wiki/Bayh-Dole_Act) sets down in law that the researcher and his/her institution own the IP generated from funded research (which makes mandates for openly releasing data extremely difficult to enforce). Most other funding agencies have similar policies (Wellcome’s is here http://www.wellcome.ac.uk/About-us/Policy/Policy-and-position-statements/WTD002762.htm ; RCUK’s is here http://www.rcuk.ac.uk/kei/maximising/Pages/IntellectualProperty.aspx ).

The question then is how much of the IP does the university claim versus the researcher. And schools that have liberal policies and encourage researchers to patent their work and start up companies based on it, have a leg up on recruiting, at least in fields where it is relevant.

Copyright law designates two ways in which a work can be work made for hire. One has to do with the employer/employee relationship, yes. But to the extent that some grad students are employees as TAs, they are so in a way that has nothing to do with their writing dissertations, which is not a requirement of the job of TA itself. Thus, a grad student cannot be an employee in a way that would make a dissertation a work made for hire. (For the same reason, the question of unionization doesn’t make any difference either.) The other way in which a work can become a work made for hire is if the creator agrees in advance of producing the work to sign an agreement with the entity commissioning the work to treat it as a work made for hire–and in this category only certain types of works specified in the Copyright Act can be so treated, dissertations not being one of them. Hence, for copyright purposes, it makes no difference how much control the university exerts or support it provides if the “commissioned” work itself cannot, by law, be considered a work made for hire. So, contrary to Rick’s supposition, this is indeed a bad argument because the law itself disallows it.

As for the dynamic of competition among universities, why not use this to drive the movement for open access of scholarly books? The investment a university makes in a scholar over the full course of a career is huge and by comparison giving that scholar an initial grant of, say, $25,000 to cover the full cost of publishing a first book OA would be small. Many top research universities already give their junior faculty initial grants to be used for research and publication purposes; increasing the size of this grant would involve no additional procedures or impose any new bureaucratic structures to implement. Wouldn’t the best and brightest younger scholars be attracted to a university that made this kind of offer?

Another way to accomplish this would be for the university to publish the work OA through its own press. Kathleen Fitzpatrick has urged that universities consider going back to the earlier model of having their presses become service agencies for their faculty. This need not raise the red flag of “vanity” publishing if peer review is carried out in the normal way; after all, university presses do all publish some books for their own faculty now, and these are not looked upon as vanity publications. The new OA press at Amherst College might lead the way here–and give Amherst new leverage in attracting the best faculty in competition with its peers like Williams College.

But to the extent that some grad students are employees as TAs, they are so in a way that has nothing to do with their writing dissertations, which is not a requirement of the job of TA itself. Thus, a grad student cannot be an employee in a way that would make a dissertation a work made for hire.

I think you’re probably right, which is why I specifically referred to faculty publications in connection with the term “works for hire.”

The other way in which a work can become a work made for hire is if the creator agrees in advance of producing the work to sign an agreement with the entity commissioning the work to treat it as a work made for hire–and in this category only certain types of works specified in the Copyright Act can be so treated, dissertations not being one of them.

Are you saying that copyright law prevents a university and a student from entering into a binding contract, one of whose terms would be the immediate public dissemination of the student’s completed dissertation? If so, can you give us a more precise citation in support of that statement?

No, Rick, I’m saying that the university and student can’t enter into a written agreement defining the dissertation as a “work made for hire,” which would mean that the university, not the student, owns the copyright as legal “author” of it. The university and student are free to enter into any kind of agreement they want regarding transfer of certain rights, including the university’s right to post the dissertation on an IR. The student could even transfer “all rights” to the university, which would make the university the copyright owner but not the legal “author.”

No argument here. But your point is tangential. The fact that universities are in a position to assert control over student work (which they can do as a condition of matriculation or graduation) is what gives rise to this discussion. It’s not about whether the institution can claim to be the work’s author. I mentioned the work-for-hire issue (as it relates to faculty, not students) because it’s a related issue and defines some of the context in which this debate has arisen–not because it’s the issue at hand.

Agreed, but I just wanted people to be clear about what the law does or does not allow with respect to defining works as work made for hire, and it was certainly a suggestion that grad students, as employees of a certain kind, might fall within its ambit, and they do not, no matter what control or support the university otherwise exercises.

A related problem is the utter lack of information graduate students have about their rights and about the implications of either embargoing or publishing their dissertation. Their advisors frequently have no idea either, librarians and ProQuest have their own interests in mind, and so there aren’t many places to go for reliable guidance. If a learned society is trying to provide some or at minimum raise the level of awareness among students who face this at a time when they’re exhausted and want nothing more than to be done, then good for that society.

It seems to me that what makes a dissertation unique is that phrase that appears on the title page of each one: “A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of … ” The dissertation is the final requirement for the degree and hence the university can require, should it choose, that an element of that requirement is to make the dissertation publicly available after a certain amount of time — or immediately. In Germany, where the dissertation was invented, the requirement has always been that the work must be published before the degree is even granted; these days, there that means the dissertation appears, publicly accessible, in the institutional repository. This is the reality, it seems to me, that the OAH is trying to address: an acknowledgment that dissertations are the student’s work, yes, but with an emphasis on the word “student.”

Be it student or dishwasher, the words original and author means that the work is protected by copyright.

Copyright is a legal concept, enacted by most governments, that grants the creator of an original work exclusive rights to its use and distribution, usually for a limited time, with the intention of enabling the creator of intellectual wealth (e.g. the photographer of a photograph or the author of a book) to receive compensation for their work and be able to financially support themselves.

see wiki

Be it student or dishwasher, the words original and author means that the work is protected by copyright.

That’s generally true. But the existence of copyright in the work isn’t what’s at question here. What we’re discussing are questions about how (or whether) the copyright can (or should) be assigned automatically to the institution whose resources the author used to create the work in question — or how (whether) the author can (should) be contractually limited in his exercise of copyright.

Only the holder of the copyright can transfer it! There would have to be some kind of signed agreement between the author and the institution.

Right, except that it’s not quite that simple. When the author is an employee writing as part of her regular job duties, the law allows the employer to retain copyright in her work. This arguably applies to faculty members, and a growing minority of academic institutions are asserting that right. It doesn’t generally apply to students; however, some institutions are also requiring students to limit their copyright prerogatives as a condition of matriculation or graduation. Sometimes the requirement is formal, and sometimes the issue arises because of the growing number of institutions that make theses and dissertations public available upon acceptance as a matter of course. That development is what’s making this issue a topic of debate right now.

The owner of the copyright by an organization for which one is and employee and who’s duties include creating copy is a given. That is why many in the newspaper business syndicate or get bylines that allow them to keep their material. But, these are contractual arrangements.

Also, there is the case of public domain materials created by government employees. These and those mentioned are special cases and recognized in law.

The question here is that of a student who is not an employee of the institution even if a TA. In my experience, most institutions specifically state that being a TA does not mean that you are an employee, but rather being a TA is a degree requirement. Thus, the institution can turn over TAs at will without all the HR implications.

As for faculty, I have found that few if any institutions claim copyright of faculty output. One reason is that they don’t want to get that involved in the personal creative endeavor. Much writing occurs off campus, or “after hours”. What a can of worms it would be to claim the intellectual output of a faculty member!

What surprises me is that institutional claims forcing an author to publish something on an institution’s site have not been challenged by authors.

But of course universities have long had an agreement with UMI (now ProQuest) to have their dissertations deposited in its database and made available for sale to anyone who wishes to purchase a copy. So, dissertations have for a long time been accessible to the public in this way, for purchase. The only difference now is that some universities want to make the dissertations available to the public for free online.

Actually, the bigger difference is the embargo question, which is what we’re actually talking about here. My understanding (someone should correct me if I’m wrong) is that ProQuest allowed the author to define an embargo at his or her discretion. The practice to which the AHA and OAH are objecting is the institutional practice of limiting dissertation embargoes to some period set by the institution. That’s a very big difference.

ProQuest abides by university policies which may enforce explicit policies regarding the delayed release and/or restriction of dissertations and thesis. Authors work with their university to determine the length of embargo prior to submission to ProQuest.

Rebecca is right, dissertations are submitted in partial fulfillment of the requirements for the degree. Making them public is also part of fulfillment of the requirements for the degree. This requirement has been around along time When I got degree 30 years ago dissertations were disseminated through a company called University Microfilms International or at least those at my school were.

Making dissertations public has nothing to do with ownership or copyright, it’s a requirement for getting a degree. Period. For example here is the section of the copyright policy at Michigan State University where I work on student created material.

“Students who author or create copyrighted works which are submitted to meet course requirements own the copyrights in such works, even if they have been created using University facilities. Neither the course instructor nor the University may utilize or distribute student-owned copyrighted works for purposes beyond those of the course in which they are submitted without obtaining the written permission of the student. Students also own the copyrights in their theses and dissertations.”

Rebecca is right, dissertations are submitted in partial fulfillment of the requirements for the degree. Making them public is also part of fulfillment of the requirements for the degree.

Everyone (including the AHA and OAH) seems to agree with this. The controversy isn’t about making dissertations public, but about embargoes: who gets to decide whether embargoes are permitted, and if they are, who gets to decide how long they are? I don’t think anyone is arguing for permanent or indefinite embargo.

i agree but my point is that it isn’t about ownership or copyright as much of the discussion implies.

The discussion is about control, which is really another way of saying “ownership.” Copyright is one thing that confers control over a work, but it’s not the only thing. (You can license rights to someone else, thus ceding some degree of control, while still retaining copyright.)

This isn’t about ownership. It is about fulfilling the conditions for receiving a degree. If it makes sense to allow students to embargo their dissertations, that’s fine, I think universities should give them the ability to do that but they don’t get the right to dictate the requirements for getting a PhD. Students own their dissertations and they can do what they want with them but if they don’t fulfill the requirements for a degree, the university has the right to say you don’t have a degree.

I think we’re talking past each other here; the technical definition of “ownership” really doesn’t matter. We agree that universities (not students) have the right to set the criteria for getting a degree. And we agree that this means universities have the right to require students to make their dissertations fully and immediately public. The difficult and controversial question is whether imposing such requirements is fair and/or wise, and what impact it might have on the university’s ability to attract top students. Just because you have the right to do something doesn’t make it the right (or smart) thing to do.

It’s also important to realize that historians develop the academic credentials that lead to promotion and tenure through books more so than through journal articles. Books require more time to perfect, even when based upon a dissertation. Without an embargo, the fear is that the work will be disseminated in ways that undermine the interest of publishers in that dissertation-based book.
Why buy the cow when you can get the milk through the fence?
Years of painstaking work are rendered less valuable to the author for the want of a year or so to convert that work from something that fulfills a degree requirement to something that will interest a wider audience.

“Books require more time to perfect, even when based upon a dissertation”

If this is true, and I firmly believe it is based on my experience, then there is very little, if any, available “milk through the fence.”

I think this whole discussion is a red herring. I certainly do not know every university’s Grad College policies, but I can’t imagine many, if any, truly require immediate open access to ETDs. The default is likely to make them openly available after the appropriate license has been signed, but making that the default and making it a requirement are very different.

Does anyone know of a university that doesn’t even give an option to embargo a dissertation? Really? What about those addressing patentable findings?

Dan, you’re right that few (if any) institutions categorically forbid embargoes. That’s not what’s being debated here. What gave rise to this discussion is the more common university practice of imposing limits on how long a dissertation may be embargoed by its author. Three years is a pretty typical ceiling; the AHA and OAH statements call on universities to let their students set longer embargoes if they so choose. Those statements, the reaction to them, and the issues surrounding them are what we’re talking about here.

Many graduate students who write dissertations are also “employees” of the institution in the sense that they receive financial support in the form of stipends, etc. While I agree with Rick that it may not be wise for institutions to assert ownership, institutions and their respective faculties do not always agree. It will certainly be interesting to see how this plays out.

Many graduate students who write dissertations are also “employees” of the institution in the sense that they receive financial support in the form of stipends, etc.

That’s true, but Sandy is right to point out that this relationship is not sufficient to make the student’s academic work a “work for hire” under copyright law. Universities that impose a particular dissemination policy on their graduate students have little if any justification for doing so under copyright law. As I understand it, the justification would have to come from elsewhere, and the source of the compulsion would have to be institutional policy, not the law.

With faculty, the “work for hire” issue is different, because producing academic writing is usually part of their job description. That’s not typically true of a TA.

The real issue here is whether or not the online availability of the dissertation in an institutional repository will hurt the author’s chances of publishing it as a book or article(s). Fortunately, we have relevant data. See the article by Marisa L. Ramirez, Joan T. Dalton, Gail McMillan, Max Read, and Nancy H. Seamans, Do Open Access Electronic Theses and Dissertations Diminish Publishing Opportunities in the Social Sciences and Humanities? Findings from a 2011 Survey of Academic Publishers: http://crl.acrl.org/content/74/4/368.full.pdf+html

This survey does not cover the issue of libraries that subscribe to ProQuest’s dissertation database, which is a more important concern than ETDs in IRs. The study is also flawed in a number of other respects. E.g., university press directors are not necessarily the best people to answer the questions posed in the survey; better respondents would have been editors-in-chief.

Barnaby, the issue you raise is certainly “a” real issue, but I disagree that it’s “the” real issue. To my mind, the central issue here is one of authorial control. Should universities be able to take control of students’ work by saying how and where it must be made public? If so, then what is the justification for doing so? It seems to me that this question needs to be addressed on its own moral, logical, and legal merits first. The downstream implications (such as market impact) of the answer we come up with should be addressed as well, but I think they’re of secondary importance.

Our undergraduate theses (the only ones we have) are often the result of students working with faculty on their research, so embargoes happen here because the faculty plan to publish their results at some point and don’t want it leaking out first. We don’t embargo everything, just the ones the students or faculty ask us to for this reason. I’m not sure where this fits in your argument.

Hi, Anna —

Well, I’m not really trying to advance a specific argument or proposal here; mainly I’m trying to tease out the implications of the various positions that different people involved in this conversation are taking. It sounds like your institution’s position is pretty much in the mainstream. One question: is there any limit on how long an embargo the authors can set? If they wanted a thesis kept dark for, say, ten years, would that be allowed at your institution?

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