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

2 Information Environmentalism

3 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. Scholarly Communication

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

5 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. Scholarly Communication

6 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. Scholarly Communication

7 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 Scholarly Communication

8  Institutional change is happening  Growth of funder and university policies  Scholarly Communication

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10  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. Scholarly Communication

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

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

13  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. Scholarly Communication

14  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). Scholarly Communication

15  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) Scholarly Communication

16  Copyright Basics Copyright covers any work that is “substantially similar” Scholarly Communication

17  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. Scholarly Communication

18  Copyright Basics Limits to what copyright covers Certain temporary copies don’t count Scholarly Communication

19  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. Scholarly Communication

20  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 Scholarly Communication

21  Copyright Basics Limits to what copyright covers Durable copies sometimes covered by fair use Scholarly Communication

22  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). Scholarly Communication

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

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

25  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 Scholarly Communication

26  Copyright Basics Let's look at the environment created by routine copyright transfers in scholarly articles and related literature. Scholarly Communication

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28 Scholarly Communication Photo by: Mike Licht at

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30  Open Access responds to “Access Denied”  Terms of Access - Free on the Internet  Terms of Use - Varies from Free-to-Read to Free-to- Reuse as long as attribution is given to the source. Scholarly Communication

31  Five Audiences that Open Access serves  Serendipitous readers  Under-resourced readers  Interdisciplinary readers  International readers  Machine readers Scholarly Communication

32  Reaching these readers is good for authors Open access increases citations Scholarly Communication

33  Institutional change is happening  Growth of “Gold” Open Access Publishing More commercial journals switching New journals launching Scholarly Communication

10/23/08

35  Institutional change is happening  Growth of “Gold” Open Access Publishing Most move from Free-to-Read to CC BY Scholarly Communication

36  Huh? Scholarly Communication

37  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. Scholarly Communication

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

46  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? Scholarly Communication

47  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 Scholarly Communication

48  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 Scholarly Communication

49  Copyright Mechanics How do the Funder or University public access policies work? Scholarly Communication

50  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. Scholarly Communication

51  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. Scholarly Communication

52  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 Scholarly Communication

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

54  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. Scholarly Communication

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

56 Faculty Copyrights  Questions?