1. Legal Issues Repositories Support Project Winter School, New Lanark Thursday 26 th February 2009 Morag Greig, Advocacy Manager (Enlighten) University of Glasgow

2. Outline Copyright and repositories: the issues –Copyright and eprints –Copyright and other types of material –Copyright and e theses Broader legal issues for repositories and institutions

3. Copyright and repositories: background The ownership of the copyright of some of the items we want authors to deposit in our repositories often lies with publishers rather than authors Many journal publishers require authors to sign a copyright transfer agreement before they will publish an article Book authors more likely to retain copyright, but unlikely to retain rights relating to distribution of their work Theses authors generally retain copyright, but issues with 3 rd party copyright material in their work Some material will not have significant copyright issues attached.

4. Copyright and repositories: not all doom and gloom! Although many publishers require authors to transfer copyright, many also give back certain rights to authors. Significant number of journal publishers do permit deposit in repositories so long as certain conditions are met. Some publishers offer a license to publish as an alternative to copyright transfer Over the last few years publishers have had to develop a more flexible approach to this area.

5. Copyright: academics and concerns Despite the fact that many publishers permit deposit in repositories so long as conditions are met, many academics are initially concerned that they may be in contravention of copyright law. Significant reassurance and advocacy work in this area are required when you are starting out Important to educate authors about what they can and can’t do Possibility of encouraging authors to look more closely at copyright issues and perhaps use author addendums, but this can be controversial Very likely to may need to offer to check copyright situation for material being deposited

6. Journal articles and copyright Many publishers now have policies on whether authors may deposit in repositories or not. Best way of checking is to use the RoMEO publisher policies & self-archiving database (http://www.sherpa.ac.uk/romeo.php) in conjunction with publisher web site if necessaryhttp://www.sherpa.ac.uk/romeo.php If a publisher/journal is not listed in RoMEO, recommend for inclusion or contact them directly (at Glasgow we use a standard e- mail template for contacting publishers)

8. Journal articles: common publisher conditions Important to look at conditions. Most common relate to: - version of paper that can be deposited; - when the paper can be deposited (embargo periods); - where the paper can be deposited (what type of repository, distinctions between personal website and repositories); - standard forms of wording that must be included within the repository record for the article.

9. Journal articles: versions Most publishers do not permit deposit of the final published version of an article they produce (a small number still do) Generally what they permit is the ‘author final version’/’author post-print’/’author final manuscript’ (terms not widely understood by authors) Requires authors to keep a version of their articles that is as close to the published version as possible Can be problematic

10. Journal articles: embargo periods Can range from 6-18 months depending on the publisher Can be dealt with by software – automatically making papers available on a specific date Best not to wait until the end of an embargo period to get papers from authors At Glasgow we make the metadata available immediately and add information about the embargo and when it will expire.

12. Journal articles: where the paper can be deposited Some publishers permit deposit in an institutional but not in a subject based repository Some publishers make a distinction between repositories and author’s personal websites Some ways of addressing this, though not all ideal.

13. Journal articles: publisher required wording Some publishers require a standard wording to be included within the record in the repository e.g. Springer “The original publication is available at www.springerlink.com”

15. Journal articles: watch out for… Publishers sometimes changes their policies Idiosyncratic policies e.g. ‘Authors are required to contact publisher before posting (permissions below will always be granted)’ Always check the conditions carefully

16. Copyright and other types of material: books Books and book chapters: nearly always necessary to contact the publisher and seek permission – usually a case by case basis decision Useful if author can help with this process Publishers more likely to give permission if book is several years old and/or out of print Making one chapter available can act as useful free advertising for publishers! Often very rewarding if permission is granted

17. Copyright and other types of material: conferences Conference publications – some major publishers make available their copyright transfer agreements on their websites In many cases may be necessary to seek permission directly If necessary ask authors to help direct you to the appropriate person to ask about permissions

18. Copyright and other types of material Sound recordings, performances, design etc. Many different rights holders involved Permission seeking likely to be resource intensive and take time May be too time consuming to get permissions for existing works Critical to involve author Educate ‘authors’ to consider permissions issues if they are planning performances etc.

19. Copyright and theses Most universities permit students to retain copyright in their thesis Major issue is inclusion of 3 rd party material within theses Tolerated within print theses – historically students have not sought permission to include this material However, generally agreed that permission needs to be sought if the thesis is to be made available online (‘communication to the public’)

20. Copyright and theses Best if students can seek permission to include 3 rd party copyright material within e version of their thesis Advice and training likely to be necessary Need to build in procedures if students cannot get permission for material or are asked to pay for it

21. Copyright challenges for repositories Who checks if it is ok for an article to be made available within your repository? How do you check? Should you encourage authors to use author addendums etc. ? How can you reassure authors about their copyright concerns?

22. On a brighter note… Experience at Glasgow indicates that copyright is becoming less of a stumbling block for repositories Bigger issues for academics relate to versions of papers – having a suitable copy and concerns about making this version publicly available High level moves to reform copyright law are important However, copyright law is not preventing repositories from developing No case law, but precedents are starting to be developed due to the number of repositories now in existence – “common practice” (safety in numbers?)

23. Broader legal issues for repositories and institutions

24. Legal issues for repositories and institutions Risk assessment Deposit licenses/agreements Take down policies

25. Risk assessment Consider possible risks your repository might face Some low level risk is necessary in order to progress But remember that all repositories are in the same position No evidence so far that any repositories have faced legal action from publishers or individuals

26. Institutional legal departments/staff May be helpful to consult with your internal legal department (if you have one) However, bear in mind that institutional lawyers are likely to be risk averse Can be difficult for lawyers to advise on repository matters, as there is no case law or precedent in this area May need to decide if it is better to have clear policy documents rather than legally binding agreements

27. Deposit license/agreement Consider developing a license for depositors Do you want this to have legal standing? Wording will be determined by what you expect from your depositors Could include details of Eligible depositors; Deposition rules; Moderation; Content quality control; Publishers' and funders' embargos; Copyright policy etc. (source: OpenDOAR Policies tool)

28. Take down policy May not have legal standing, but very useful to put in place Makes clear how the repository will deal with material which has been challenged, e.g. by a publisher or by an author Guidance from JISC Legal suggests that with a robust take down policy in place complaints are unlikely to be taken further

29. Summary An awareness of the legal issues relating to repositories is important However, legal issues do not need to stand in the way of developing successful repositories Important to reassure authors that they CAN deposit in repositories without contravening copyright law Use the UK repository community for advice and reassurance

30. Discussion groups: questions What are the major legal issues for your repository? Have you been asked questions in this area that you have had difficulty answering? How did you address this? Do you need to put any policies in place that address legal issues? Do you need to talk to people in your organisation about legal issues? If so, who, and about what? Each group to report back briefly on the outcome of the discussions.