[GOAL] Re: Charles Oppenheim on who owns the rights to scholarly articles

[Michael Carroll]

Hi all,

    This is an old issue.  Kevin Smith is correct.  Here's my version of why
from 2006.  
http://carrollogos.blogspot.com/2006/05/copyright-in-pre-prints-and-post.htm
l.  

The way to understand this is to forget about the sequence by which an
article is produced and think only about the rights that a copyright owner
has.  On Professor Oppenheim's view, the copyright owner's exclusive right
of reproduction would be limited to controlling only verbatim copies.  If
that were true, I would be free to republish the entire corpus of Elsevier
publications if I make only small changes to the articles similar to the
differences between a final draft and the final publication.  Needless to
say, if this were the law, some clever publisher would have done just as I
suggest.  But, this is not the law in the US or in the UK.

So even if the publisher were to be assigned rights only in the final
version of an article ­ and most publication agreements are not this limited
­ the scope of those rights would preclude posting of substantially similar
versions whether those versions were created before or after the published
version is produced. (US law uses the term "substantially similar" whereas
UK law asks whether the copyright work has been copied "in substantial part"
but it effectively means the same thing in this context.  See
http://www.ipo.gov.uk/types/copy/c-about/c-economic.htm)

Now, Steven Harnad is quite correct that in a majority of publication
agreements, the publisher receives exclusive rights either by assignment or
by exclusive license and then grants back to the author the non-exclusive
rights to post some earlier version of the article.  And, he is quite
correct that not enough authors exercise the rights they have under their
existing publication agreements.  He is also right that they may (and
should!) deposit copies of their final manuscripts in institutional or
disciplinary repositories because the act of deposit is covered by the
exceptions and limitations to copyright ­ such as fair use or fair dealing ­
in a substantial number of countries around the world.

Best,
Mike

Michael W. Carroll
Professor of Law and Director,
Program on Information Justice and Intellectual Property
American University Washington College of Law
4801 Massachusetts Avenue, NW
Washington, D.C. 20016
Office: 202.274.4047

Faculty page: http://www.wcl.american.edu/faculty/mcarroll/
Blog: http://carrollogos.blogspot.com
Creative Commons: http://creativecommons.org
Public Library of Science: http://www.plos.org

From:  Richard Poynder <richard.poynder at btinternet.com>
Reply-To:  "Global Open Access List (Successor of AmSci)" <goal at eprints.org>
Date:  Tuesday, February 4, 2014 5:17 AM
To:  "'Global Open Access List (Successor of AmSci)'" <goal at eprints.org>
Subject:  [GOAL] Charles Oppenheim on who owns the rights to scholarly
articles

The recent decision by Elsevier to start sending take down notices to sites
like Academia.edu, and to individual universities, demanding that they
remove self-archived papers from their web sites has sparked a debate about
the copyright status of different versions of a scholarly paper.
 
Last week, the Scholarly Communications Officer at Duke University in the
US, Kevin Smith, published a blog post challenging a widely held assumption
amongst OA advocates that when scholars transfer copyright in their papers
they transfer only the final version of the article. This is not true, Smith
argued.
 
If correct, this would seem to have important implications for Green OA, not
least because it would mean that publishers have greater control over
self-archiving than OA advocates assume.
 
However Charles Oppenheim, a UK-based copyright specialist, believes that OA
advocates are correct in thinking that when an author signs a copyright
assignment only the rights in the final version of the paper are
transferred, and so authors retain the rights to all earlier versions of
their work, certainly under UK and EU law. As such, they are free to post
earlier versions of their papers on the Web.
 
Charles Oppenheim explains his thinking here:
http://poynder.blogspot.co.uk/2014/02/guest-post-charles-oppenheim-on-who.ht
ml
 
Richard Poynder
 
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