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

Wed Feb 5 22:11:44 GMT 2014

Thanks to Michael Carroll for contributing to the discussion.

Comments:

Altering a work after publication by someone with no rights to claim copyright (e.g. re-publishing the Elsevier corpus with minor changes) is a very situation than the author's own prior versions of the work. In scholarship it is very common for authors to produce a number of versions of a work both before and after formal publication. I argue that only the formal published version is automatically covered by copyright (although with a really bad contract an author can sign away anything). 

Here is an example of a common series of versions of a work: a scholar might give an early version of a work-in-progress at a grad student conference, then include a more mature version in a thesis and possibly another conference presentation, then submit an article for publication. After publication, in my country and I suspect elsewhere knowledge dissemination is an expectation, and so an author is likely to create more versions of the same work, without sharing the specific version of the publisher.

I doubt that scholarship is unique in this regard. If a story is published in an anthology that was previously published in a magazine or on a blog, the copyright in the original work does not disappear.

This argument assumes a black-and-white single copyright owner approach. I would argue that this is not common in scholarship, but that rather rights sharing is far more common. As Sally Morris pointed out today on this list, the trend in scholarly publishing for the past decade has been away from copyright transfer to a "license to publish" approach. I would note that there is overlap between the actual rights of authors and publishers in "license to publish" and copyright transfer; it is possible for an author to have less rights with a license to publish than with full copyright transfer

Open access policy relies on arguments that others besides authors and publishers have rights in scholarly works (taxpayers, funding agencies, universities). My perspective is that these arguments do not go far enough, but should include everyone who contributed to a work, including research subjects, and that ultimately the collective knowledge of humankind belongs to all. It is important to distinguish between what might technically be the law of today, and what we might envision as the best law for the future. Copyright law is by no means settled anywhere, but rather the subject of ongoing debate and discussion at WIPO, in trade treaty negotiations, the World Summit on the Information Society, through court cases and elsewhere. For this reason I would argue that we should not restrict discussion on this important topic to technical interpretations of copyright law today.

best,

Heather Morrison

On 2014-02-05, at 11:28 AM, Michael Carroll wrote:

> 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.html.  
> 
> 	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.html
> 
> Richard Poynder
> 
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-- 
Dr. Heather Morrison
Assistant Professor
École des sciences de l'information / School of Information Studies
Master of Information Studies (M.I.S.) program accredited by the American Library Association
Maîtrise en sciences de l’information (M.S.I.) accréditée par l’American Library Association
University of Ottawa
http://www.sis.uottawa.ca/faculty/hmorrison.html
Heather.Morrison at uottawa.ca