Protecting Your Scholarship:Copyrights, Publication Agreements,

and Open Access

Harvard UniversityOffice for Scholarly Communication

May 11, 2009

Kenneth D. Crews, J.D., Ph.D.Director, Copyright Advisory OfficeLecturer, Columbia Law SchoolColumbia Universitywww.copyright.columbia.edu

Some Modest Goals

• Advancing Your Scholarship• Promoting Access to Publications• Preserving Academic Freedom• Expanding the Classroom• Supporting Research Worldwide• Building the Next Generation of Research• Reducing Costs and Barriers

The Public Interest

• Definition according to Peter Suber:

• “Open-access (OA) literature is digital, online, free of charge, and free of most copyright and licensing restrictions.”

Why Right Now?

• Harvard Resolution (2008)• Pre-Licensed to the University• Open Access in Repository• Opt-Out with Permission• NIH Public Access Policy (2008)• Final Manuscript to PubMed Central• 12-Month Embargo

What Could Go Wrong?

• Limited Access/Limited Impact• Loss of Rights• Control of Your Scholarship• Missed Opportunities• Future Reuse of Your Works• Misuse of Your Works• Uses Not on Your Terms

Why Right Now? (Redux)

• Congressional Bills• Undo the NIH Policy• Anticircumvention (DMCA)• Controlled Access and Terms of Use• Google Books Settlement• Tight Control and Limited Usefulness• “Other People’s Copyrights”

The Copyright Context, I

• Principle: Everything Is Protected (Almost)

• Original Works of Authorship

• Fixed in a Tangible Medium of Expression

• Automatic Protection

• Examples: Writings; Art; Music; Video; Software; More.

• Excluded: US Gov‘t Works; Ideas; Facts.

The Copyright Context, II

• Principle: Copyright is a Set of Rights• Reproduction• Distribution to the Public• Derivatives• Public Performance and Display• DMCA Rights• Rights are Divisible

Additional Rights?

• Right to Manage

• When and How to Publish

• Right to Transfer or License

• Publication Decisions

• Permissions to Use

The Copyright Context, III

• Principle: Someone is the Copyright Owner

• Basic Rule: The Creator of the Original Work is the Initial Owner

• Works Made for Hire: Employer Owns the Copyright

• Copyrights are Transferable

• Transferable in Whole or in Part

Transfers of Copyright

• Transfers vs. Licensing

• Transfer: Must be in Writing

• Exclusive vs. Non-Exclusive

• Exclusive: Must be in Writing

• Entire Copyright vs. Portion of Rights

Works Made for Hire

• Version 1:• Employee• Acting within the Scope of Employment• Version 2:• Independent Contractor• Certain Commissioned Works• Signed Agreement

Copyright and Your Scholarship

• Scholarship and Copyright• Who is the Copyright Owner?• Author or WMFH? Policy? Agreement?• Publication Agreement• Transfer or License? Retained Rights?• Future Use of Your Work• By You? By Others?

The Changing Context

• Digital Technology holds the potential for making more scholarship easily available.

• Digital Technology also holds the potential for controlling access.

• The growth of scholarship comes from access to existing works.

• The impact of our scholarship depends on access to our works.

Stewardship of Copyrights

• Funding Interests

• Institutional Interests

• Revenue Possibilities

• Integrity of Academic Programs

• Not all Copyrights are Equal

• Creative Management Serves Academic Goals

Who Decides?

• The Person Who Holds Legal Rights:

• Author (You!)

• Employer of Author

• Licensee of Rights

• Transferee of Rights

Options for Allowing Access

• Traditional Publishing, Print and Digital

• Self Publishing: Print and Web-based

• Open Access

• OA Publisher (www.doaj.org)

• Institutional Repository

• Don’t Overlook: Negotiation!

Publication Agreement:Websites and Repositories

“The Author shall at any time have the right to make, or to authorize others to make, a preprint or a final published version of the Article available in digital form over the Internet, including, but not limited to, a website under the control of the Author or the Author’s employer or through digital repositories including, but not limited to, those maintained by scholarly societies, funding agencies, or the Author’s employer.”

Publication Agreement:Academic Activities of the Author

“The Author shall, without limitation, have the right to use the Article in any form or format in connection with the Author’s teaching, conference presentations, lectures, other scholarly works, and for all of Author’s academic and professional activities.”

Publication Agreement:Filling the Gaps

• License vs. Transfer

• Author’s Name and Affiliation

• Translations, Abstracts, Adaptations

• Creative Commons on Publicated Journal

• Later Publication by Author

• Citation to Original Journal Publication

Do You Still Own the Copyright?

• Yes. . . Unless No. . .• “Access” is an exercise of your privilege as

copyright owner to make works available to wide readership.

• But:• Copyright ownership was already the problem.• Transfers of copyrights to publishers = loss of

control; restrictions on access

Tough Questions about Access

• Will Colleagues Respect OA Journals?

• Is OA Compatible with Peer Review?

• How do I Manage my Copyrights?

• How do I Read and Negotiate Agreements?

• Who Pays the Costs of Publication?

• What about Sales and Economic Survival?

Better Agreements

• Select “Friendly” Publishers

• Encourage Publishers and Editors

• Negotiate Publication Agreements

• Keep Copies of Your Agreements

• Deposit Publications with Appropriate Repositories

Three Things to Remember

• You have Choices about Management and Access to Your Work

• Be a Good Steward of Your IP: When to Keep--When to Share.

• Read, Negotiate, and Keep a Copy

New York Times, 1976

Thank You!

Kenneth D. Crews, J.D., Ph.D.www.copyright.columbia.edu