If you want to use surveys, questionnaires, interview questions, tests, measures, or other instruments created by other people, you are required to locate and follow usage permissions. The instrument may be protected by copyright and/or licensing restrictions.
Copyright Protection
Copyright provides authors of original creative work with limited control over the reproduction and distribution of that work. Under United States law, all original expressions that are “fixed in a tangible medium” are automatically protected by copyright at the time of their creation. In other words, it is not necessary to formally state a declaration of copyright, to use the © symbol, or to register with the United States Copyright Office.
Therefore, you must assume that any material you find is copyrighted, unless you have evidence otherwise. This is the case whether you find the instrument openly on the web, in a library database, or reproduced in a journal article. It is your legal and ethical responsibility to obtain permission to use, modify, and/or reproduce the instrument.
If you use and/or reproduce material in your thesis/dissertation beyond the limits outlined by the “fair use” doctrine, which allows for limited use of a work, without first gaining the copyright holder’s permission, you may be infringing copyright.
Licensing/Terms of Use
Some instruments are explicitly distributed under a license agreement or terms of use. Unlike copyright, which applies automatically, users must agree to these terms in order to use the instrument. In exchange for abiding by the terms, the copyright holder grants the licensee specific and limited rights, such as the right to use the instrument in scholarly research, or to reproduce the instrument in a publication.
When you ask a copyright holder for permission to use or reproduce an instrument, you are in effect asking for a license to do those things.
Follow the four-step process below:
1. Determine whether you need permission
There are different levels of permissions for using an instrument:
a) No permission required
i. The copyright holder has explicitly licensed the use of instrument for any purpose, without requiring you to obtain permission.
ii. If you are only using a limited portion of the instrument, your use may be covered under the Fair Use Doctrine. See more here: https://uhcl.libguides.com/copyright/fairuse.
iii. If the instrument was developed by the federal government or under a government grant it may be in the public domain, and permission is therefore not required.
iv. If the document was created before 1977, it may be in the public domain, and permission is therefore not required. See the Stanford Public Domain Flowchart at https://fairuse.stanford.edu/wp-content/uploads/2014/06/publicdomainflowchart.png.
b) Non-commercial/educational use:The copyright holder has licensed the instrument only for non-commercial research or educational purposes, without requiring you to obtain the permission of the copyright holder. Any other usage requires permission.
Sample Permission for Educational Use:
Test content may be reproduced and used for non-commercial research and educational purposes without seeking written permission. Distribution must be controlled, meaning only to the participants engaged in the research or enrolled in the educational activity. Any other type of reproduction or distribution of test content is not authorized without written permission from the author and publisher. Always include a credit line that contains the source citation and copyright owner when writing about or using any test.
Source: Marta Soto, “How Permissions Work in PsycTests,” APA Databases & Electronic Resources Blog. American Psychological Association. http://blog.apapubs.org/2016/12/21/how-permissions-work-in-psyctests/.
Even if you are not required to obtain permission to use the instrument, consider contacting the author for ideas on how to administer and analyze the test. Authors often welcome further use of their work, and may request you send them a copy of your final work.
c) Permission required: Instruments that require you to obtain the permission of the copyright holder, regardless of whether the use is for educational or commercial purposes. This may be because the copyright holder
If you cannot locate the permissions, you are required to identify the copyright holder and contact them to ask about permission to use the instrument.
2. Identify the copyright holder (Adapted from Crews)
The next step is to identify who owns the copyright. The copyright holder is usually the creator of the work. If the copyright owner is an individual, you will need to do the usual Internet and telephone searches to find the person. Be ready to introduce yourself and to explain carefully what you are seeking.
Some authors transfer copyright to another entity, such as a journal publisher or an organization. In these cases, you must obtain permission from that entity to use or reproduce the instrument. You can often identify the owner by locating a © copyright notice, but as mentioned above, not all copyrighted works have a notice.
Check the following sources to locate instruments, their copyright holders, and their permission statements:
You may need to contact the author or publisher directly to find out who owns the copyright. Publishers often have websites that prescribe a method for contacting the copyright owner, so search the publisher website for a permissions department or contact person. Be sure to confirm the exact name and address of the addressee, and call/e-mail the person or publishing house to confirm the copyright ownership.
Tips:
Do not send permissions letters to all possible rightsholders simultaneously. Taking the time to find the person who most likely holds the copyright will better yield success. If you do not have much information about who actually owns the copyright, be honest with your contacts, and they may be able to help you find the right person.
3. Ask for permission (Adapted from Crews)
Once you have identified the copyright holder, you must determine the scope of your permission request. Some copyright owners furnish their own permission form that you may download from their website.
If the copyright owner does not provide a permission agreement form, you may write your own letter (click here to download a template). Requests should be made in writing; e-mail is fine for this purpose. A most effective letter will include detailed information concerning your request for permission to use the work. Include the following information:
Important: Obtaining permission to use an instrument is not the same as obtaining permission to reproduce the instrument in your appendix. If you intend on providing a copy of the instrument in an appendix, ask for separate permissions to do that.
Click here to download a template letter. Feel free to modify and adapt this template for your purposes.
4. Keep a record
After securing permission to use and/or reproduce the instrument, save a copy of the correspondence and the agreement. Documentation allows you to demonstrate to others that you have the legal right to use the owner's work. In the unlikely event that your use of the work is ever challenged, you will need to demonstrate your good faith efforts. That challenge could arise far in the future, so keep a permanent file of the records. Moreover, you might need to contact that same copyright owner again for a later use of the work, and your notes from the past will make the task easier.
Upload a copy of your permission letter in Vireo with your thesis/dissertation, or include it as an appendix in the document itself.
In some cases, you may never get a response from the copyright holder or you may never even be able to identify who they are or how to contact them. It can be difficult to know how to proceed when you reach a dead end. Unfortunately, no matter how diligently you have tried to get permission, these efforts cannot completely eliminate the risk of infringement should you proceed to use the work.
Assuming you have diligently investigated your alternatives, do not want to change your project, and remain in need of the elusive copyright permission, the remaining alternative is to explore a risk-benefit analysis. You need to balance the benefits of using that particular material in your given project against the risks that a copyright owner may see your project, identify the materials, and assert the owner’s legal claims against you. Numerous factual circumstances may be important in this evaluation. The “benefit” may depend upon the importance of your project and the importance of using that particular material. The “risks” may depend upon whether your project will be published or available on the Internet for widespread access—as theses and dissertations will. You ought to investigate whether the work is registered with the U.S. Copyright Office and weigh the thoroughness of your search for the copyright owner and your quest for appropriate permission.
Undertaking this analysis can be sensitive and must be advanced with caution and with careful documentation. You may be acting to reduce the risk of liability, but you have not eliminated liability. A copyright owner may still hold rights to the material. Members of the University of Houston-Clear Lake community should consult with their chair or the Neumann Library to discuss their options.
Portions of this FAQ are used and adapted from:
Crews, Kenneth and Rina Elster Pantalony. “Special Cases.” Columbia University Copyright Advisory Services. https://copyright.columbia.edu/basics/special-cases.html. Licensed under Creative Commons Attribution 4.0 International (CC BY 4.0).
Crews, Kenneth. “Asking for Permission.” Columbia University Advisory Services. https://copyright.columbia.edu/basics/permissions-and-licensing.html. Licensed under Creative Commons Attribution 4.0 International (CC BY 4.0).
Hathcock, April. “Getting Permission.” NYU Libraries Copyright Library Guide, https://guides.nyu.edu/c.php?g=276785&p=1845968. Licensed under Creative Commons Attribution-NonCommercial 4.0 International (CC BY-NC 4.0).
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