Transcript Slide 1

Author’s Rights and Open Access
Open Conversations About Open Access
Norman, OK
Feb. 28- Mar. 1, 2013
Michael W. Carroll
Professor of Law
American University Washington College of Law
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Information Environmentalism
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Scholarly Communication
Why the change?

Internet distribution of research creates new potential
to increase research impact
Copyright 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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Scholarly Communication
Why the change?
Researchers sign away these copyrights on terms that
prohibit the use of the Internet's potential

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Scholarly Communication
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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Scholarly Communication
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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Scholarly Communication
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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Scholarly Communication
Institutional change is happening
Growth of funder and university policies
http://roarmap.eprints.org/
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Scholarly Communication
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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Scholarly Communication
Copyright Basics
•Copyright applies to works of authorship
•Works of authorship can range from fulllength books to individual figures, charts, or
other units.
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Scholarly Communication
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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Scholarly Communication
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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Scholarly Communication
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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Scholarly Communication
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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Scholarly Communication
Copyright Basics
•Copyright covers any work that is
“substantially similar”
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Scholarly Communication
Copyright Basics
Partial 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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Scholarly Communication
Copyright Basics
•Limits to what copyright covers
•Certain temporary copies don’t count
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Scholarly Communication
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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Scholarly Communication
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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Scholarly Communication
Copyright Basics
•Limits to what copyright covers
•Durable copies sometimes covered by fair
use
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Scholarly Communication
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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Scholarly Communication
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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Scholarly Communication
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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Scholarly Communication
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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Scholarly Communication
Copyright Basics
•Let's look at the environment created by
routine copyright transfers in scholarly
articles and related literature.
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Scholarly Communication
Photo by: Mike Licht at http://www.flickr.com/photos/notionscapital/
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Scholarly Communication
Open Access responds to “Access Denied”
Terms of Access
- Free on the Internet
Terms of Use
- Varies from Free-to-Read to Free-toReuse as long as attribution is given to
the source.
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Scholarly Communication
Five Audiences that Open Access serves
Serendipitous readers
Under-resourced readers
Interdisciplinary readers
International readers
Machine readers
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Scholarly Communication
Reaching these readers is good for authors
 Open access increases citations
http://opcit.eprints.org/oacitation-biblio.html
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Scholarly Communication
Institutional change is happening
Growth of “Gold” Open Access
Publishing
 More commercial journals switching
 New journals launching
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10/23/08
Scholarly Communication
Institutional change is happening
Growth of “Gold” Open Access
Publishing
 Most move from Free-to-Read to CC BY
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Scholarly Communication
Huh?
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Scholarly Communication
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
Scholarly Communication
Institutional change is happening
Is the future of pre-publication peer
review changing?
 Peer review answers two questions:
(1) Is this research valid within the norms
of the discipline?
(2) If yes, how important is this research
to the field?
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Scholarly Communication
Institutional change is happening
Is 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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Scholarly Communication
How to change the environment now?
Publish in an open access journal
Support and comply with Public Access
policies
Demand rights to post articles from
publishers
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Scholarly Communication
Copyright Mechanics
•How do the Funder or University public access policies
work?
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Scholarly Communication
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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Scholarly Communication
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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Scholarly Communication
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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Scholarly Communication
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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Scholarly Communication
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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Scholarly Communication
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?
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