Open access and rights retention

What should you do when using third-party content, such as images or text? This guidance covers the steps you need to undertake to include these third-party materials both in your published paper/chapter and in the Accepted Manuscript that will be uploaded into Elements and shared under a Creative Commons Attribution (CC BY) licence. It does not constitute legal advice and authors are fully responsible for ensuring that they have obtained and documented the rights to use third-party content in their work. 

Third-party content is any material you choose to use in your work that belongs to someone other than yourself.  This may include your own previous work if the copyright was transferred to your publisher or to another person/organisation. 

This material is usually protected by copyright.  

Using material that is protected by copyright usually means you need to obtain permission from the copyright owner or remove the material. If a copyright owner does not give you permission to use their third-party content in your work, you cannot use it. 

But there are a few circumstances under which you may not need permission: 

1. The third-party materials are out of copyright. 

2. Copyright has been waived. 

3. Permission has been granted by licence, such as a Creative Commons Licence or Open Government Licence and your use is within the terms of that licence. If your use is outside the terms of the licence you will need to request permission from the copyright owner. 

4. Your use of third-party content is covered by one of the exceptions in the Copyright, Designs and Patents Act 1988. In that case you can use the material for the purpose of ‘Criticism, Review, Quotation and News Reporting’ if this use can be considered ‘fair dealing’ (the other exceptions in the law do usually not apply to published research). Fair dealing means you are copying less than a substantial part. The Act does not define 'substantial' and case law has determined that 'significance' as well as quantity must be taken into account. Please see the Library's copyright guide for more information, or refer back to the Copyright Designs and Patents Act 1988 section 30. According to the JISC guide to publishing under the UKRI Open Access Policy, these exceptions could apply if a researcher is: 

• Commenting and discussing a piece of content that has been made available to the public 

• Including an extract from a work that is necessary and appropriate to include within the new article 

• Using extracts only long enough to evidence the point the researcher is making 

• Using extracts accompanied by an acknowledgement as to the original owner/author (this could be an academic citation in line with the convention of the discipline). 

As there is an element of risk assessment, you should discuss with your publisher their approach to fair dealing and copyright exceptions. 

When including third-party content in a publication, you must include an attribution with a copyright notice.  For examples of attributions, please refer to your publisher’s guidance. The copyright owner may ask for particular wording to be used and you should follow their requirements. 

Check your publisher's policies and guidance on third-party content and discuss this with them. 

Some of the things you should consider are below. 

• Your publisher may have specific requirements for third-party content.  

• They may provide templates for requesting permissions and guidance for how licences are recorded. 

• It will usually be the author's (and not the publisher's) responsibility to identify third-party content and seek written permission from the copyright owner to use the content. 

• If payment for permission is required, check if the publisher will support this or whether this is the author’s responsibility. 

• Check if your publisher allows the use of content under a copyright exception and their approach to fair dealing. 

• Your publisher may have standard practices for the content of attribution and copyright notices. 

• They may have recommended sources of images and other third-party content. 

For third -party content that is to be included in scholarly articles and chapters, you must seek permission to use the content (a) in the published paper and (b) in the Accepted Manuscript that will be uploaded into the repository and shared under a Creative Commons Attribution (CC BY) licence. Why? When you publish a scholarly article or a chapter, the SHU Open Access policy means that when you deposit your author accepted manuscript using Elements, it will be made Open Access on SHURA with a CC BY licence. Because of this, when requesting permission from copyright owners to use their content in your work, you also need to request permission to use their content in the Open Access version of your work under a CC BY licence. 

In your permission requests, make it clear what, where, when and how the content will be used, including if the content will be used in an Open Access publication or Open Access version of your work (such as an accepted manuscript uploaded into Elements), and which licence will be used. You could use the following template for your requests. 

Template

Based on G. Johnson et al. (2014). Keeping your thesis legal. The University of Leicester, University Library, p. 11. 

If you do not get permission to use the third-party content in your work, you cannot use the material; a lack of response to your request does NOT constitute a go-ahead. 

You may get permission to include the content in the published version that is not going to be Open Access (for example, in a printed book or a subscription journal) but not to use the content in the Open Access version that will be available from the repository with a CC BY licence in the author accepted manuscript. For example, the content owner may not give permission for open access at all, or they may offer you to use their content under another license than CC BY. 

No permission for open access 

If the copyright owner does not give permission for Open Access at all, you have the following options: 

1. You could decide not to use that content in any version of your publication. 

2. You could omit the third-party content just from the Open Access version that is deposited on SHURA.  You should however indicate that material was omitted, by doing one of the following: 

• including a link or other acknowledgement of the missing content to make your work more understandable., 

• including a blank box where the content should be, without further description of the missing content (known as tombstoning). 

This is always only appropriate if removing the material does not impinge on the understanding of what you are trying to say or convey.  

3. If removing the third-party content from the Open Access version is not appropriate, you could choose to opt-out of the SHU policy. It should be noted that you can only opt out of (a) the requirement to apply a CC BY licence, or (b) the requirement to disseminate a copy of your accepted manuscript from the day of publication (i.e. introducing a delay). You cannot opt out of the requirement to deposit the accepted manuscript into Elements. You should be aware that opting out may mean that you no longer comply with your funder’s Open Access requirements and that it may affect eligibility for the REF. 

No permission for CC BY 

If the copyright owner allows you to use their content in the Open Access version, but only with a more restrictive licence than CC BY, you have the following options: 

1. You could include the third-party content in the Open Access version under a different Creative Commons licence or on an ‘all rights reserved’ basis, depending on what the copyright owner allows. In the attribution crediting the third-party content in your manuscript, you should provide a clear statement about the copyright and licence that applies to that content. If the copyright owner requests a specific form of wording, this should be used. 

2. Alternatively, you may decide you want to apply a different license than CC BY to your entire manuscript. In this case, you could choose to opt-out of the SHU Open Access policy, relieving you of the requirement to disseminate an Open Access version of your accepted manuscript under the Creative Commons Attribution licence. It should be noted that you can only opt out of (a) the requirement to apply a CC BY licence, or (b) the requirement to disseminate a copy of your accepted manuscript from the day of publication (i.e. introducing a delay). You cannot opt out of the requirement to deposit the accepted manuscript into Elements. You should be aware that opting out may mean that you no longer comply with your funder’s Open Access requirements and that it may affect eligibility for the REF. 

For monographs, chapters and edited collections arising from research funded by the UKRI, the advice below has been provided.   This also contains examples and more information that will be useful for anyone wanting to understand more about using third-party copyright in Open Access publications. 

• The UKRI’s guidance on managing third-party copyright. A good practice guide for researchers publishing open access monographs and book chapters. 

• JISC guide to publishing under the UKRI open access policy: copyright and Creative Commons licences.