COPYRIGHT AND AUTHORS RIGHTS – part I Erin Finnerty – NJIT March 14, 2011

Changing landscape New electronic information technologies: Enable instantaneous sharing of scholarly work via the internet Create the capacity for the higher education community to expand ways of knowledge dissemination beyond the traditional publishing model. Growing movement: Authors of peer reviewed articles frequently opt for to self-archive their work in repositories that are openly accessible.

Copyright is the right to… Reproduce the work Distribute the work Prepare derivative works Perform the work Display the work License any of the rights listed above to third parties

When does copyright begin and end? The beginning… Copyright automatically occurs as soon as an original expression exists in a tangible form. The end… Public Domain 70 years after the death of the author All works in US published <1923 A helpful tool Copyright slider

Weighing Fair Use Purpose and character of the intended use PRO: educational, non-profit, parody CON: commercial, profit, failing to acknowledge author Nature of the copyrighted work PRO: published, factual content, further educational purposes CON: unpublished, creative entity, fiction Amount used PRO: smallest possible portion CON: most or entirety Effect on marketability PRO: using legal copy, little to no effect on market for the original CON: distribution without permission

Some Fair Use tools Section 108 Spinner Guidelines to library and archives reproduction for purposes of user-needs, replacement, or preservation Fair Use Evaluator A step-by-step web form for explanation of fair use assessment Results in a time-stamped PDF document as a record of the evaluation

A Note on Creative Commons Attribution. You let people copy, distribute, display, perform, and remix your copyrighted work, as long as they give you credit the way you request. NonCommercial. You let people copy, distribute, display, perform, and remix your work for non-commercial purposes only. ShareAlike. You let people create remixes and derivative works based on your creative work, as long as they only distribute them under the same Creative Commons license that your original work was published under. NoDerivatives. You let people copy, distribute, display, and perform only verbatim copies of your work — not make derivative works based on it. “Our vision is nothing less than realizing the full potential of the Internet — universal access to research, education, full participation in culture, and driving a new era of development, growth, and productivity.”new era of development, growth, and productivity

…and Science Commons Making scientific research “re-useful” — We help people and organizations open and mark their research and data for reuse. Enabling “one-click” access to research materials — We help streamline the materials-transfer process so researchers can easily replicate, verify and extend research. Integrating fragmented information sources — We help researchers find, analyze and use data from disparate sources by marking and integrating the information with a common, computer- readable language. “Science Commons has three interlocking initiatives designed to accelerate the research cycle — the continuous production and reuse of knowledge that is at the heart of the scientific method. Together, they form the building blocks of a new collaborative infrastructure to make scientific discovery easier by design.”

They say it best

Ownership can get complicated… Q: Who owns the copyright? A: The “author” - the creator of an ‘original expression’ OK! BUT! This copyright ownership becomes more complex when: Work is created by an employee for an employer Work is created by multiple authors

Work done for an employer Copyright can be held by a corporate entity in the U.S. License to use the work may be held by employer Scholarly works are traditionally not considered ‘work for hire’ This issues has recently become more complicated with the prevalence of online content and classes

Work for Hire (WFH) An exception to the general rule that the person who actually creates a work is the legally-recognized author of that work. If a work is "made for hire", the employer—not the employee—is considered the legal author. In the United States a "work for hire" (published after 1978) receives copyright protection until 120 years after creation or 95 years after publication, whichever comes first. This differs from the standard U.S. copyright term of life of the author plus 70 years because the "author" of a work for hire is often not an actual person, in which case the standard term would be unlimited.

University Policy examples …”the university further recognizes the ownership interest of the faculty member to such material, except where significant use of university resources are utilized in the creation of such material, or there are contractual or funding mandates which determine ownership. (exclusive of any personal computers, library resources, secretarial, and office space)” The development of instructional materials follows the principles set forth in the Copyright Policy. Unless significant use of university resources were utilized in the creation of such material, or the ownership is subject to research or contractual restrictions (as set out in the Copyright Policy), the faculty member owns the copyright to the materials created. Subject to the terms of the Copyright Policy, the faculty member shall also be deemed to own the course materials and/or curriculum outlines that they develop, whether in physical or electronic formats. – General Counsel, Holly Stern

University Policy examples Copyright Ownership 1. Institutional Works and Instructional Materials as defined herein shall be deemed as having been created within the scope of employment of the Creator. Copyright ownership of such works shall vest with the University unless otherwise agreed in writing. Rights associated with copyright ownership become enforceable where the University has sought and obtained a copyright, which shall be done where the University determines that the material is commercially viable. 2. Traditional Works of Scholarship as defined herein shall be deemed as having been created outside the scope of employment of the Creator. Copyright ownership of such works shall vest with the Creator. 3. Ownership of the copyright in Other Intellectual Property will be determined by the University on a case-by-case basis, based upon the level of use of University Resources in its creation. 4. Absent the establishment of such by law or contract, the University shall assert no ownership rights to any Copyrightable Material developed by a Creator before joining the University.

The issue of multiple authors Agreement on future use is crucial before publication Each author may exercise exclusivity rights independently Additional listed author may be included as a ‘courtesy’ A contribution of ‘original thought’ must be present to be considered an ‘author’

The importance of thinking on future use Archival Institutional repositories Self-archiving Professional Conference presentation Scholarship Derivative works Non-compete clauses Educational Student use