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Author’s Rights and Open Access

Open Conversations About Open AccessNorman, OK

Feb. 28- Mar. 1, 2013

Michael W. CarrollProfessor of Law

American University Washington College of Law

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Information Environmentalism

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Why the change?Internet distribution of research creates new potential to increase research impactCopyright law controls distribution rights.The law gives copyrights to researchers*

* It is possible that the university owns the copyrights to faculty scholarship, but this theory has not been truly tested in the courts.

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Why the change? Researchers sign away these copyrights on terms that prohibit the use of the Internet's potential

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Why do funders and universities require researchers to make the change? Authors need to be published. Authors are not willing or fully able to negotiate with journal publishers on their own over how the research will be shared with the public.

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Why the change? Funders have begun to assert their rights to maximize return on investment

Terms and conditions of funding agreements increasingly require grantee to manage the terms of copyright transfer to ensure greater research impact via open and public access via the Internet.

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Why the change? Open Access is a modern expression of the university’s longstanding mission. University faculty are collectively agreeing to grant university sufficient rights to allow for access to author’s final version of an article

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Institutional change is happeningGrowth of funder and university

policieshttp://roarmap.eprints.org/

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Copyright Basics•Copyright applies to works of authorship•Copyright is limited to the author's choice of expression but does not cover ideas or facts.

• E.g., experimental data not copyrighted, but an original selection or arrangement of data would be.

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Copyright Basics•Copyright applies to works of authorship•Works of authorship can range from full-length books to individual figures, charts, or other units.

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Copyright Basics•Copyright applies to works of authorship•Who owns the copyright in an article with multiple figures, tables, pictures, or other matter?

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Copyright Basics•Copyright applies to works of authorship•There is one copyright jointly owned if all the component parts were created by authors intending to merge them into a single work – e.g. an article.

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Copyright Basics• Copyright applies to works of authorship• If these materials were intended to be used separately, then each component has a separate copyright owned by its creator(s).

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Copyright Basics•Copyright is automatic.•At the moment article is written, the law bestows exclusive rights upon author(s)

•Reproduce a work (in copies)•Distribute copies•Prepare derivative works•Publicly perform/communicate to the public •Publicly display/communicate to the public•Moral rights (outside the United States)

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Copyright Basics•Copyright covers any work that is “substantially similar”

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Copyright BasicsPartial borrowing or adaptations also fall within copyright

• E.g., the first draft of an article is usually similar to the final draft.

• Exception: Borrowing small amounts, e.g., short quotes, not covered.

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Copyright Basics•Limits to what copyright covers•Certain temporary copies don’t count

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Copyright Basics

Text mining does not require a copyright license in the U.S. if the durable outputs are only facts (rather than creative expression) because “copies” aren’t made.

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Copyright Basics•Reproduce a work (in copies)

• not all copies are “copies”•Must be

•Capable of being perceived, reproduced, or otherwise communicated•For “a period more than a transitory duration”•Recent case = buffer copy held for 1.2 seconds was not a “copy” for copyright purposes because only transitory duration

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Copyright Basics•Limits to what copyright covers•Durable copies sometimes covered by fair use

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Copyright Basics•Limits to what copyright covers

Reference copies made from text mining do not require a copyright license in the U.S. if the reference copies are not publicly shared and are kept for research purposes. (Fair use).

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Copyright Basics•Copyright is transferable•To transfer some or all of the exclusive rights, author(s) must do so in writing and sign it.

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Copyright Basics•Permissions (non-exclusive licenses)•Copyright owner can give permission or non-exclusive license very informally. Verbal permission or even implied from conduct.

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Copyright Basics• Copyright is transferable• Subscription-based journals require the authors to transfer some or all rights in an article• However, the author can transfer only those rights that have not been licensed already

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Copyright Basics

•Let's look at the environment created by routine copyright transfers in scholarly articles and related literature.

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Photo by: Mike Licht at http://www.flickr.com/photos/notionscapital/

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Open Access responds to “Access Denied”Terms of Access

- Free on the InternetTerms of Use

- Varies from Free-to-Read to Free-to-Reuse as long as attribution is given to the source.

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Five Audiences that Open Access servesSerendipitous readersUnder-resourced readersInterdisciplinary readersInternational readersMachine readers

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Reaching these readers is good for authorsOpen access increases citations

http://opcit.eprints.org/oacitation-biblio.html

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Institutional change is happeningGrowth of “Gold” Open Access

PublishingMore commercial journals switching

New journals launching

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10/23/08

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Institutional change is happeningGrowth of “Gold” Open Access

PublishingMost move from Free-to-Read to CC BY

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Huh?

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Creative Commons licenses are permissions granted to the public with some conditions

Six CC licenses combine different sets of conditions

“CC BY” is shorthand for the Creative Commons Attribution license.

The only condition on reuse is that the source is properly credited.

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Step 1: Choose Conditions

Attribution

ShareAlike

NonCommercial

NoDerivatives

Step 2: Receive a License

CC0 public domain dedication

Public Domain Mark

most free

least free

3 layers

“human readable” deed

“lawyer readable” license

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Institutional change is happeningIs the future of pre-publication peer

review changing?Why not just validate the research and let readers decide how important the result is?

PLoS One is the fastest growing science journal

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How to change the environment now?Publish in an open access journalSupport and comply with Public

Access policiesDemand rights to post articles from

publishers

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Copyright Mechanics•How do the Funder or University public access policies work?

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Copyright Mechanics• As a term and condition of a funding agreement or a university policy, authors agree that they are granting a non-exclusive license to the funding agency or the university to make and distribute copies to the public.

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Copyright Mechanics•This is a forward-looking agreement by the author that applies to any article that will be written and that is subject to the policy.

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Copyright Mechanics• This license then automatically comes into effect at the time the article is written -- before the author signs the journal’s publication agreement

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Copyright Mechanics• Author should check journal’s publication agreement to make sure it is consistent with the license given to the funder or university.

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Copyright Mechanics• The author cannot grant a fully exclusive license to the publisher if the funding agency or the university already has permission to make the author’s version of an article available on the Internet.

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Copyright Mechanics• Authors can readily change the terms of the publication agreement through a standardized “Author Addendum” attached to the publisher’s form.

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Faculty Copyrights

Questions?