Negotiating with Publishers to Keep Your Copyright Insert Date Insert Instructors’ Names / Titles The following slides are based on the work of the UCLA Library Scholarly Communications Steering Committee

Today’s Objectives 1.Exclusive Rights of Copyright Owners 2.Authors’ Rights / Joint Authorship 3.UC Policies on Copyright Ownership 4.Negotiations with Publishers 5.Resources and Tools for Faculty Authors 6.Using Creative Commons Licenses 7.Questions and Discussion

Disclaimer I am not an attorney, and cannot offer legal advice. The following information is presented to educate about copyright law and institutional policy in general terms. If you are unclear about your options when confronted with a specific legal issue related to copyright, you are urged to consult with an attorney with a background in copyright law.

Author Defined  Under copyright law, the creator of the original expression in a work is its author. The author is also the owner of copyright unless and until there is a written agreement by which the author assigns the copyright to another person or organization, such as a publisher. - See UC Policy on Copyright Ownership, Section IV

Joint Authors  A joint work is a work prepared by two or more individuals, with the intention that their separate contributions be merged into a single work.  Under copyright law, absent an agreement to the contrary, jointly created works are owned by the authors jointly and equally. If you and your co-authors see things differently, you should detail the difference in writing, and all co-authors should sign it.  Under UC Policy, ownership of jointly created work requires a separate assessment of the category of work for each individual author.

Exclusive Rights of the Copyright Holder aka the “Bundle of Rights”  Make copies of the work  Make derivative works based on the original work  Distribute the work  Perform the work publicly  Display the work in a commercial setting The copyright owner may license some or all of these rights to others.

Transferring Copyrights Copyrights can be bought, sold, willed to others, or given away. A transfer of the copyright or an exclusive grant or license to use the work is a transaction that must be conveyed in writing. This happens to some degree every time you sign a publishing agreement. “A complete transfer of copyright to a publisher restricts a faculty member's right to use the work in future teaching and research. UC faculty members facing this situation should not hesitate to try to negotiate new terms.” o UC Policy on Copyright Ownership

The Digital Revolution changed everything* *except the copyright law  Copyright controls “copying” and “copies” of creative expression  Every use in digital environment creates a “copy”  Every use potentially implicated or controlled by copyright  The law is simple, but our digital world is complex.

Did You Know… If you sign over your copyright you could be required to ask permission…  To post your own work on your website  To contribute your own work to your university’s institutional repository  To digitally archive your own work  To share your own work with others  To allow others to use your own work

Did You Know… 2003 Association of Learned and Professional Society Publishers survey, What Authors Want, found that “61% of respondents thought that copyright should remain with the author, rather than being signed over to the publisher.” But… In an study of publishers’ Copyright Agreements, 72 of the 80 agreements sampled (90%), representing 94% of journal titles, asked authors for copyright assignment. Gadd, E., Oppenheim, C., Probets, S. (2003). An Analysis of Publishers’ Copyright Agreements.

Association of Learned and Professional Society Publishers. ALPSP Survey. What Authors Want. (2003)

UC Policy on Copyright Ownership Section I. Preamble  “The creation of copyrighted works is one of the ways the University fulfills its mission of contributing to the body of knowledge for the public good. The University encourages the creation of original works of authorship and the free expression and exchange of ideas.”

Individual Ownership Under UC Policy  Copyright ownership resides with the originator of the work if it is:  Scholarly/Aesthetic Work: created by faculty and designated academic employees resulting from independent academic effort.  Personal Work: developed by a University employee outside the course and scope of their University employment and without University resources.  Student Work: work produced by a registered student without the use of University funds (other than Student Financial Aid), that is produced outside any University employment.

University Ownership Under UC Policy Copyright ownership resides with the University Regents if it is: Sponsored Work: work produced through the University in the performance of a written agreement between the University and a sponsor. Sponsored works do not include journal articles, lectures, or books created through independent academic effort and based on the findings of the sponsored project, unless the sponsored agreement states otherwise. Commissioned Work: work produced for University purposes by individuals not employed at the University or by University employees outside their regular University employment. Contracted Facilities Work: work produced by non-University personnel or University personnel acting outside the course and scope of their employment, using designated University facilities pursuant to a written agreement, subject to agreement as to ownership. Institutional Work: except as provided otherwise, all copyrights to works made by University employees in the course and scope of their employment or works made with the use of University resources.

Ownership of Course Materials* Copyright ownership resides with the Designated Instructional Appointee who creates the material. –University employees who serve as Instructors of Record and have a general obligation to produce course materials. Includes all members of the Academic Senate and Clinical Professors. Appointees in other academic titles may also be designated by the President. University has royalty-free perpetual license to use the materials for course instruction. * Course Materials are items prepared for use in teaching, including lectures, lecture notes and materials, syllabi, study guides, bibliographies, visual aids, images, diagrams, multimedia presentations, web-ready content, and educational software.

Negotiating with Publishers  If your work is accepted for publication, you will be presented with a Publishing Agreement or Author’s Agreement to sign.  Some agreements will reference other documents, such as an “Author’s Rights” statement on the publisher’s website, which provide more detail on the rights the publisher grants to authors.  Read these agreements carefully and consider your options before you sign. Like any contract, an author’s agreement is open to negotiation. Many authors have retained some or all of their copyrights by altering the agreement before signing.  You are not guaranteed to succeed, but publishers are increasingly willing to accommodate author requests to modify the Author’s agreement.

Let’s read the fine print From Elsevier’s author rights statement on its website: What rights do I retain as a journal author*? As a journal author, you retain rights for large number of author uses, including use by your employing institute or company. These rights are retained and permitted without the need to obtain specific permission from Elsevier. These include: the right to make copies (print or electric) of the journal article for their own personal use, including for their own classroom teaching use; the right to make copies and distribute copies (including via ) of the journal article to research colleagues, for personal use by such colleagues (but not for Commercial Purposes**, as listed below); the right to post a pre-print version of the journal article on Internet web sites including electronic pre-print servers, and to retain indefinitely such version on such servers or sites (see also our information on electronic preprints for a more detailed discussion on these points);electronic preprints

Let’s read the fine print (pt. 2) From Elsevier’s author rights statement on its website: the right to post a revised personal version of the text of the final journal article (to reflect changes made in the peer review process) on the author's personal or institutional web site or server, incorporating the complete citation and with a link to the Digital Object Identifier (DOI) of the article; the right to present the journal article at a meeting or conference and to distribute copies of such paper or article to the delegates attending the meeting; for the author’s employer, if the journal article is a ‘work for hire’, made within the scope of the author’s employment, the right to use all or part of the information in (any version of) the journal article for other intra-company use (e.g. training), including by posting the article on secure, internal corporate intranets;

Let’s read the fine print (pt. 3) From Elsevier’s author rights statement on its website: patent and trademark rights and rights to any process or procedure described in the journal article; the right to include the journal article, in full or in part, in a thesis or dissertation; the right to use the journal article or any part thereof in a printed compilation of works of the author, such as collected writings or lecture notes (subsequent to publication of the article in the journal); and the right to prepare other derivative works, to extend the journal article into book-length form, or to otherwise re-use portions or excerpts in other works, with full acknowledgement of its original publication in the journal. *Please Note: The rights listed above apply to journal authors only. For information regarding book author rights, please contact the Global Rights Department.

The terms of every author’s agreement are not standard throughout the publishing industry Though many other large publishers offer similar exceptions, every publisher’s Author’s agreement and Author’s Rights statement will vary. Some publishers have different Author’s Rights for different journal titles Many publishers demand full transfer of copyright, and then assign certain rights back to the authors. Some allow authors to retain copyright fully. Read the agreement carefully and decide if its terms are appropriate for you – if not, ask for what you want.

Negotiating author rights for a book are even more complex, and require an even more careful analysis of your intended future uses of the material. Image:

Tools that can help A few websites can help you find the language you need within your author agreements

The SPARC Author Addendum

The Science Commons Addendum Engine

Springer book contract: BEFORE

"Author retains: (i) the rights to reproduce, distribute, perform, and display the Content in any University- related or personal medium for non-commercial purposes; (ii) the right to prepare derivative works from the Content; and (iii) the right to authorize others to make any non-commercial use of the Article so long as Author receives credit as author and the Publisher in which the Content has been published is cited as the source of first publication of the Content. For example, Author may make and distribute copies in the course of teaching and research and may post the Content following publication on personal or institutional Web sites." SPRINGER-KLUWER – Book Contract AFTER…

What You CAN Do Retain Your Copyright Discuss Authors’ Rights with your colleagues Negotiate with Publishers to retain control over scholarly communication. Publish through the UC’s institutional repository, eScholarship Free your work (exactly as much as you like) through a Creative Commons license

Key UCLA Library Contacts Copyright and Intellectual Property –Martin Brennan –Angela Riggio –Sharon Farb

Need Further Help? The UCLA Library can help with questions about retaining your copyrights when negotiating with publishers. us:

Questions? Thank You! Acknowledgements The preceding slides are based on the work of the UCLA Library Scholarly Communications Steering Committee Photo from flickr: