To Assign or Not To Assign? November 6, 2007
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation, Open Access and Institutional Repositories , add a commentThe International Association of Scientific, technical and Medical Publishers issued a statement last month on the benefits to authors of assigning copyright to publishers. The thrust of the statement is that publishers are better placed than authors to defend against plagiarism and copyright infringement, to ensure broad dissemination of the articles in question, and to manage issues like requests to reprint and migration to new formats. Each of these points is very debatable, and Peter Suber provides both excerpts of the document (which is itself very short) and a comment that refutes the assertions list above in a very concise and competent way. Not surprisingly, his conclusion is that publishers primary concern is to protect their own interests and that a concern for authors’ rights is, at best, secondary.
One point on which Suber and the STM publishers agree is that a complete assignment of copyright need not preclude authors from making their work available in open access through a personal webpage, institutional repository or disciplinary archive. Even when faced with a demand to assign the copyright, authors may negotiate to retain the right to deposit their work in the ways suggested, as well as to retain other rights. There seems to be little doubt, and the STM publishers do not even argue the point, that open access deposit is a benefit to scholarly authors. But authors will have to decide for themselves if assigning copyright while retaining that right really serves their best interests or whether they should negotiate to keep their copyrights and give the publisher a more limited permission to publish.
NIH public access and copyright October 31, 2007
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing , 1 comment so farLast Tuesday the Senate passed a FY 2008 appropriations bill that included language making it mandatory for investigators funded by the National Institute of Health to place the published versions of their results in the open access PubMed Central database within one year of publication. There is a new release about the policy, which was passed by the House in July, here from the Alliance for Taxpayer Access.
A consultant for publishing groups recently posted several questions about how the policy relates to authors’ copyrights on a library listserv, intended to convince academic authors that the policy is some kind of threat to them. By responding to those questions below, I hope to clarify the real relation between this new mandate and author’s rights.
The first question was whether supporters of the NIH mandate believe authors should own their copyrights, including the right to charge for their work. In my opinion, an author should have ownership rights in their own work. I also recognize that the unique nature of intellectual property means that those rights have to be subject to limitations and exceptions in the public interest. Every copyright law in the world, and all of the international treaties, recognize and allow for such limitations and exceptions, so this is not a radical proposition. In any case, the NIH policy is not a threat or challenge to copyright ownership. In fact, the explicit language of the provision passed last week requires that the mandate be implemented in a way consistent with an author’s ownership of copyright.
All that the NIH mandate requires is that authors give to the NIH a non-exclusive right to distribute their work no later than one year after it is published. This demand is a much more modest limitation on authorial rights than is the complete transfer of copyright still demanded by many publishers as a precondition of publication. There is no evidence that this delayed and non-exclusive license would harm an author’s ability to charge for her work, although that part of the copyright has little application in the world of academic authorship. On the other hand, there is evidence that public access as soon as possible will benefit an author’s reputation, which is the real value academic authors are able to extract from their copyright ownership.
The second question was whether supporters of NIH deposit believe that authors should have the right to transfer their rights by contract. Again, I support that right very strongly; I spend a good deal of my time advising academic authors about how to accomplish these transfers in a thoughtful manner that benefits them, not just the other party to the transfer. Again, the NIH policy will not impair the ability to do this, it will simply make such contracts subject to the non-exclusive license described above. Governments often put restrictions and requirements on the contents of contracts; it would be absurd to claim that the Uniform Commercial code has seriously impeded a manufacturer’s ability to sell his goods, even though contracts for sale are much more heavily regulated than a publication contract is, even after the NIH mandate.
One must remember that deposit in PubMed Central will not be required until one year after publication, so there is lots of room to negotiate the exact terms by which that non-exclusive license will be implemented. I will certainly advise authors to negotiate for earlier deposit, since it will be to their benefit to do so.
Finally, supporters were challenged about whether they believe academic work is “work for hire” that is owned by their employing universities, and whether they also felt other faculty work,like inventions, should belong to the school. It seems to me that academic work should not be work for hire, although I recognize the strong legal basis on which some universities claim that it is. My preference is for clear policies that leave academic ownership of copyright in the authors’ hands. But again, the NIH policy has nothing to do with work for hire; it certainly does not involve any claim that funding of research makes a work a work made for hire. Such a claim would be insupportable under our current definition of work for hire.
When something is a work for hire, the ownership of the copyrights vests immediately with the employer. In contrast, the NIH is only requiring, again, a non-exclusive license to distribute which will not have to come into being until well more than a year after the copyright vests in the author.
As for other types of intellectual property, I would note that many academics are not uncomfortable with a work for hire claim over patentable inventions because they recognize that university resources are much more involved in such creations and that the assistance of the university is needed to pursue the complex and expensive process of obtaining a patent. Copyright protection is very different in its origination and its terms, so it is quite rightly treated differently.
Responding to these challenges helped me clarify for myself that the real threat to authors’ copyrights is not the NIH public access policy, but an outdated approach to publishing that tries to build an exclusive market around a non-competitive good (which means a good that can be distributed widely without diminishing its supply or value to the creator).
Keeping your copyright October 2, 2007
Posted by Kevin Smith in : Authors' Rights, Scholarly Publishing , add a commentThere is a great new website to help those who create stuff — whether they are filmmakers, musicians or academic authors — understand and manage their copyrights. Several groups at Columbia University law school, working with a Board of Advisors, have created the site to walk creators through the rights they have, how they can manage those rights to accomplish their personal goals for their work, and even the common terms found in many publication contracts. The need for this website is summed up very well in its first paragraph:
“Today, too many creators take a passive attitude toward their copyrights. The matter seems complex, and publishers or distributors may tell you that everyone does it their way, or that giving up copyrights is standard practice. But giving up your rights under copyright is a decision, not a default option. If you stand passively by, you may over the course of a long creative career produce a large body of work, most of which is owned and controlled by other people, whose interests and yours may diverge.”
Academic authors and creators should take these words to heart and use this website to develop a proactive strategy for managing the rights they have in the works they create. The vast array of options now available for sharing and exploiting one’s own creative work suggest that passivity is no longer a sensible option, and the information offered by this site is exactly the remedy needed.
Copyright term, open access and the NIH July 15, 2007
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation, Open Access and Institutional Repositories , 2commentsAs reported in the Chronicle of Higher Education last week, an Oxford graduate student in economics is soon to publish a paper arguing that the “optimal” term of copyright protection is just 14 years. This is vastly shorter than the current term of protection in the US, where the term is life of the author plus 70 years, or in nearly any other nation of the world. Although his conclusion may be too radical to be practical, Rufus Pollok’s calculations add some weight, if any was needed, to the argument that copyright protection has moved very far from its original goal of providing an incentive to authors to create and now nearly exclusively serves the economic interests of large commercial distributors.
Pollock bases some of his calculations on the argument that a shorter term becomes more desirable as technology makes reproduction and distribution easier. Nevertheless, it is interesting to note that the optimal term he arrives at – 14 years – was precisely the term provided by the first English copyright law, the 1709 Statute of Anne.
Even if the copyright term was vastly shorter than it now is, however, many of the arguments for open access to research and scholarship would remain just as strong. That there is great public benefit to wider access to cutting edge research, and great justice in providing taxpayers with no-toll access to the results of research for which they have already paid, are points that do not depend on the length of the copyright term. Even if the term were as short as Pollock proposes, more immediate public access would still be worthwhile pursuit; authors would still need to see that a right to open access deposit was included in their publication agreements and funders, especially government agencies, would still need to mandate such deposit whenever practical. But under our grossly over-extended term of protection, these needs are greatly amplified.
Congress is now considering an appropriations bill that includes funding for the National Institute of Health and, for the first time, would mandate that research funded by the NIH be deposited in the PubMed Central database within six months of publication. This language has clear the appropriations committee and will be considered on the House floor this week. Publishers have objected that this mandate might undermine copyrights, but this argument hardly seems convincing, since most publication agreements already allow authors to offer their own published work on the web. Authors must continue to read such agreements with great attention to be sure they retain this right, and Congress should not let this spurious argument prevent them from seeing the basic justice that demands passage of the NIH appropriations bill as it has come from committee.
Added note — The American Library Association has posted this Action Alert to assist those who would like to encourage Congress to support the NIH mandate.
Educating the Educators June 21, 2007
Posted by Aisha Harvey in : Authors' Rights, Open Access and Institutional Repositories, Scholarly Publishing , add a commentAt this point in time it is accurate to call the emphasis that educational organizations are placing on Scholarly Communications a movement. The Scholarly Communications Movement like many social and political movements can be characterized by its detractors, supporters and strategies. One such strategy, which I call “Educating the Educators” is the art of communicating with faculty and librarians about the roles that they play as creators, owners, buyers and disseminators of scholarly publications in the scholarly resource enterprise.
Many groups are doing their part to get the word out, emphasizing the need for institutional repositories, retaining author rights and understanding the difference between copy right infringement and fair use. But the work of “Educating the Educators” is never done and I predict that this movement is still in its infancy. It was in this spirit that Kevin Smith, Pat Thibodeau and I led a Scholarly Communications brown bag lunch for the Duke University Library staff this past spring.
Kevin’s presentation, “Authors’ Copyrights: Helping Duke Authors Manage their Rights” was an overview of Duke’s Author Advisory Service that provides information and advice for Duke faculty authors. Kevin’s presentation emphasized that informed authors can “add value by increasing the usability of their work.”
Pat’s presentation, “Faculty / Author Advocacy: Power and Influence on Scholarly Publishing” outlined methods of encouraging faculty to become Scholarly Communication Advocates and to consider publishing in Open Science (Access) sources. This advocacy is mutually beneficial for faculty members and libraries. Faculty can increase the “visibility of their work” and “immediately communicate with peers” and libraries will be in a stronger position to provide access to affordable content.
My presentation, “Institutional Repositories + Libraries” presented the findings of an Association of Research Libraries’ study of the growth and use of Institutional Repositories (IR’s) in libraries. I also gave an overview of the four IR’s at Duke University:
