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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