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I have seen in certain types of questionnaires that the content is very similar, and that, possibly by coincidence, certain phrases are the same.

Let me give you an example: the organizational culture measurement questionnaires.

If one compares different questionnaires, you normally will find similarities in certain items and some may be exactly the same. This is not because a copy has been made, but because human resources has a general consensus on what things should be measured. For example, because everyone agrees that the leadership of the bosses should be measured, therefore we commonly find items such as:

My boss is a good leader

or with respect to the company:

I feel happy in this company

My question arises from this: Could an author who created a questionnaire claim copyright infringement by other questionnaires with similar or identical items, even if this happened by pure chance?

  • Depending on the purpose of the survey, I’d imagine many of them would be covered by Fair Use. – nick012000 Nov 9 '19 at 1:39
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Copyright law varies from place to place, so a valid answer might depend on where you are. But in general, it is a good idea to assume that copyright law applies to everything. Basically if you write something (or create in another medium) you own rights to it. Some places you may have to register the copyright as was true in the past in the US. Most places copyright is a matter of civil, not criminal, law. But I think there are exceptions.

There are some caveats, however. Copyright doesn't prevent you from using something, only from copying it or obtaining a copy illicitly. There are a few exceptions to the general prohibition against copying, but they are a bit subtle.

The first is fair use, but that is a subtle thing. While there are fair use exceptions for some uses, including research, they aren't unlimited exceptions and depend on a "proportional" standard that can only be adjudicated by agreement between parties or by a court in a lawsuit. (Note, this is a US view, things vary around the world).

So, since you are doing research, you can depend on fair use up to a point, but that point isn't very clear. A few items out of a hundred is probably not an issue. How few? No-one can say in general. If the copyright holder objects, then you have a problem that will be expensive to solve.

However, another caveat may be more important here. You can't really copyright things for which there is only one basic way to say or write. So lots of things in mathematics can't be copyrighted because the "expression" is more or less immutable. Copyright doesn't "protect" ideas, only the expression of ideas. So, if "The boss is kind and gentle" is the idea, then there are only a few ways that that can be said in a questionnaire, so it is unlikely anyone would have a basis for a copyright complaint.

Unless you copy a lot of those kinds of things from a single source. Then the source is more likely to start to question your intent and might want to raise it in a lawsuit. My guess is that is pretty unlikely, but don't discount it altogether. You can get a bad reputation as a researcher for things that don't break any legal rules.

But you also need to consider the question of plagiarism. If you copy a bit and don't cite the source then you have a different issue, though it, too, may be covered by the "one reasonable form of expression" idea.

A claim of copyright can always be made. Courts, however, won't be supportive of frivolous claims, where only a small part was copied or the reasonable ways to express an idea are very limited. Therefore it is unlikely that a claim is likely to be made if things happen "by chance". A valid claim would need to depend on fairly clear evidence, especially given the research (partial) exception as stated in the law.

See especially the section on the four considerations used to evaluate fair use claims in the link above. I think the third one is what you need to be most concerned with:

the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

But, of course, if you need to repeat a questionnaire in its entirety, say for reproducing the research, you can always ask the authors for permission.

Moreover, if you reuse a questionnaire that you find in a copyrighted work that you have valid access to, there should be no issue as long as you don't reproduce that questionnaire in your own work. You just refer to the published questionnaire in your methodology section.

  • As someone who teaches survey methods, I don’t think this analysis emphasizes the right things. It is best practice to use validated measures and to use identical wording that can be compared across surveys. I specifically discourage students from developing their own questions whenever possible. Citation is, of course, required. – Dawn Nov 12 '19 at 16:35
  • @Dawn, you are then using the "only one way to express it" exception to copyright law. If it can't be validly said another way then it can't be copyrighted. It is an "idea" not an "expression". I don't think there is a conflict here. – Buffy Nov 12 '19 at 16:39
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I'm answering from my perspective as a health services researcher. I am not a lawyer. If you know that there are a number of proprietary copyrighted surveys in your field and you think you might run into issues with them, then you are arguably on the wrong Stack Exchange (maybe try the Law Stack Exchange site), and you may also need your own legal advice.

It is possible for a researcher to develop a proprietary version of a questionnaire. The Short Form 36 (SF-36) survey was an early measure of health (specifically, we'd say health-related quality of life, which I'll abbreviate to HRQoL). I don't know the entire history behind this, but I think that the researcher involved in its development later collaborated with Optum, a company owned by the US health insurer United Healthcare, to develop the proprietary SF-36v2. There is an older version, known as the RAND SF-36. RAND is a non-profit corporation which explicitly licenses the RAND SFS-36 for public use. I believe that all or nearly all the survey questions are identical, but the SF-36v2 has some different Likert response scales for a few questions.

After the SF-36, however, other measures of HRQoL have been developed by other academic researchers, such as the EuroQol 5D questionnaire (EQ-5D). To my knowledge, the literature establishing the new measures would probably cite the SF-36 researchers who published in peer-reviewed literature. Many of the underlying domains are identical. (A domain in my context might be physical function, in org studies it might be trust in leadership.) I'm less clear if the items (i.e. the individual questions) on similar HRQoL surveys or measures of some of the domains (e.g. measures of mental distress) are identical or similar. My guess is that there are at least a few individual items out there that are very close to the equivalent SF-36 items. The thing is, the RAND SF-36 has a paper trail in peer reviewed journals that came before the SF-36v2, so I don't know how it would work for Optum to sue (but recall IANAL).

If you cite peer-reviewed sources that describe what domains should be measured and you use and expand on the domains, that should be fine. If you develop your own items based on established domains (e.g. through focus groups of experts or consumers), I'm pretty sure that should be fine also. If you combine the same items from several surveys, and you cite them and state a justification for needing to do so, I think that should be OK as well. That said, if I were a peer reviewer, I might ask if there was an already accepted instrument in the field. There's no point re-inventing the wheel many times unless the wheel is limited in some respects.

It's already been said that there may be a limited number of ways to ask about a concept. If you did your own item development and you duplicated some of the items in my existing non-proprietary survey, I would probably write a letter to the editor pointing this out if you duplicated a lot of items or you duplicated the wording exactly. If I had developed a survey that I'd copyrighted and commercialized, then of course I'd be more litigious. I don't know how many such surveys exist in your world, however.

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Answering from more of a scientific perspective... wording is everything in questionnaires.

The specific language is critically important, even if the general concept is the same. When you validate a survey or questionnaire-based scale, you are validating that specific language. Developing a copycat scale, or translating it to another language, removes the ability to compare to existing normative data and you lose all the benefits of past work towards validating the scale.

Therefore, I would think that most scales that are available for purchase or under a particular license would be most concerned with preserving the specific scale items: that's where the value is.

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