Presented at the ACRL Scholarly Communication 101: Starting with the Basics Road Show the The Ohio State University in Newark, Ohio on June 7, 2011; sponsored by the Academic Library Association of Ohio (ALAO) and OhioLINK
Can travel all together or be separated out. Items in a bag, etc. Notice I say rights – plural; copyright is not a single right, but a bundle of rights Librarians are used to thinking about copyright from a use standpoint, but to help faculty when publishing, we need to think about copyright from an author’s standpoint Reproduction (i.e., copies) In print or electronic For colleagues, students, conference attendees, anyone Distribution Sell, rent, lease, or lend publicly Derivative creation Adaptations, compilations, other new works based on protected work Performance & Display Literary, musical, dramatic, choreographic, pantomimes Motion pictures and other AV works (performance) Pictorial, graphic or sculptural works, including individual images from motion pictures and other AV works (display) Digital audio transmission of sound recordings are considered display
Moment something is “fixed in a tangible medium of expression.” Raise your hand if you’re a copyright holder. We all have more copyrights than we know what to do with, and the vast majority of those will never be profitable. And that’s okay, but it makes for a confusing system. Orphan works. Because copyright lasts so long, there are many many works for which the copyright holder is difficult or impossible to locate. This is especially true of many visual works like photographs, where the photographer’s name may never have been on the photo at all.
These are basic points about copyright that I hope everyone in this room already knows. If you don’t, you need to. Many of your faculty won’t know these fundamental points, so you should. I’m going to leave this slide up for a few moments while I get your help on a little project. Now….who here enjoyed Mad Libs as a kid?
WE HAVE A SYSTEM CREATED (BY US!) FOR THE BENEFIT OF PUBLISHERS, BUT SINCE 1774 COURTCASE ESTABLISHED IT, COPYRIGHT HAS BEEN FOR THE ARTIST, LEGALLY. YOU’D NEVER KNOW THAT BASED ON THE ARCHITECTURE OF ACCESS WE HAVE BUILT AND CONTINUE TO SUPPORT
Despite getting all these great rights under copyright, too often authors simply give them all away, not understanding the full extent of what they are doing Because copyright can only be given away in writing, and because copyright transfer agreements or publishing agreements are required by publishers, authors frequently sign the agreements verbatim, sadly often without really reading them Not all rights have to be given away: copyright rights can be broken apart Fortunately authors are not without some recourse: licensing, addenda and negotiation are all available options – BUT the author needs to know about them Applies primarily to journal articles not monographs or book chapters, but there is experimentation Licensing enables the copyright holder, whether that is the author or the publisher, to license partial rights to the other party; Creative Commons licenses are one way, although some publishers have their own Addenda are added to copyright transfer agreements and essentially revert rights to the author that he or she desires; lots of examples: SPARC Author Addendum, Scholar’s Copyright Addendum Engine, CIC consortium Publishers don’t really like addenda, but at least is opening for negotiation
Traditionally publishers want full copyright; this is a holdover from the print-only days when it was easier for authors to give publishers all copyrights to manage reprint requests and other use requests BUT in actuality the only right that publishers truly need is the right of first publication; ideally a nonexclusive right to publish and disseminate the work, perhaps with an embargo to provide the publisher with a period of exclusivity As noted before, specific rights can be separated from the rest; they can be unbundled from the full rights granted by copyright We’ve talked about licenses, addenda and negotiation In a little while, Sarah is going to talk to you about open access, but I wanted to note here that OA publishers typically do not require the full transfer of copyright, letting copyright remain with the author and licensing only what rights are needed for successful publication and promotion in the journal As you are publishing or as you are assisting faculty who are publishing, you need to think about what rights you want to retain and go from there
I am sure we are all familiar with the principles of fair use and the four factors: Transformative factor: purpose and character of use Nature of the copyrighted work Amount and substantiality of portion taken Effect of use upon potential market When authors take control of their copyright and negotiate rights for themselves, faculty, librarians, students – all users – are freed from the limits of fair use, which although not horrifically limiting, are not as broad as when authors fight for their rights When authors do not take control of their copyright, their hands are just as tied as our own in reusing works – a fact that unfortunately few faculty understand, partly because they abuse the system and use their works how the want to regardless and partly because we aren’t helping to educate them about copyright management
That notice at the beginnings of movies and sporting events: bunk. In practice, a lot of it will depend on risk. There are uses that are probably fair owned by people who will probably sue, and uses that are maybe less likely to be fair, but there is no known copyright holder and so you’ll probably be okay. May also depend on your publisher, if you’re working with one. Some will require permission, or proof that something is in the public domain, before they’ll publish. Others will be more open with their interpretation. Work you do as a student gives you a great deal of leeway as far as Fair Use. Give special thought to things you’re putting online.
If you leave today without understanding anything else, these take home points are essential Every single one of us in this room, whether you helped with the Mad Libs story or not, are copyright holders Contracts by their very nature are open to negotiation and publishing contracts are no different Authors need to think about how they MIGHT want to use their work in the future: class distribution, course packs, repository deposits, posting to personal websites, derivative works, compilations…however authors THINK they might use their work should affect what they agree to give away when publishing Although I haven’t addressed this today, some of the scare tactic messages used by opponents to authors’ rights, and specifically open access, claim that peer review is undermined by alternative publishing options and copyright management – IT IS NOT
So…we’ve talked about what rights are included under copyright and we’ve talked about ways that authors can manage those rights by reserving or unbundling and keeping the rights they want But how do you tell what rights publishers are giving authors before any negotiation begins? On your tables are six publication agreements or copyright transfer agreements from various publishers I’d like you to take 10-12 minutes to look them over and identify the language that stipulates which rights are transferred and which are kept or returned; discuss among your tables which agreements are good and which are bad Feel free to discuss examples you’ve seen as well After 10-12 minutes, we’ll discuss them collectively One thing to keep in mind is that librarians, especially acquisitions staff, read and negotiate much more complicated contracts all the time, so we can’t let publisher agreements intimidate us if we are to help faculty understand them!
ACRL SC 101: Copyright
COPYRIGHT: KNOW THE BASICS Molly Keener Wake Forest University ACRL Scholarly Communication 101
What is copyright? <ul><li>Copyright is a bundle of rights: </li></ul><ul><li>The right to reproduce the work </li></ul><ul><li>The right to distribute the work </li></ul><ul><li>The right to prepare derivative works </li></ul><ul><li>The right to perform the work </li></ul><ul><li>The right to display the work </li></ul><ul><li>The right to license any of the above to third parties </li></ul>
Who is the copyright holder? <ul><li>The creator is usually the initial copyright holder. </li></ul><ul><li>If two or more people jointly create a work, they are joint copyright holders, with equal rights. </li></ul><ul><li>With some exceptions, work created as a part of a person's employment is a "work made for hire" and the copyright belongs to the employer. </li></ul>
So…where does copyright come from? <ul><li>Copyright exists from the moment of creation, and lasts for the life of the author plus 70 years. </li></ul><ul><li>You used to need a little c in a circle, and to register your work with the copyright office, but you don’t anymore. </li></ul><ul><li>Copyright just happens. </li></ul>
Requirements for protection <ul><li>An original work of authorship </li></ul><ul><li>Creativity (just a dash) </li></ul><ul><li>Fixed in a tangible medium of expression </li></ul>
What copyright protects <ul><li>Copyright protects… </li></ul><ul><li>Writing </li></ul><ul><li>Choreography </li></ul><ul><li>Music </li></ul><ul><li>Visual art </li></ul><ul><li>Film </li></ul><ul><li>Architectural works </li></ul><ul><li>Copyright doesn’t protect… </li></ul><ul><li>Ideas </li></ul><ul><li>Facts </li></ul><ul><li>Titles </li></ul><ul><li>Data </li></ul><ul><li>Useful articles (that’s patent) </li></ul>
As run the sands of time, <ul><li>The bundle of copyrights lasts a long time: </li></ul><ul><ul><li>Life of the author plus 70 years; </li></ul></ul><ul><ul><li>For joint works, 70 years after death of last author; </li></ul></ul><ul><ul><li>For works for hire or anonymous works, 95 years from publication or 120 years from creation, whichever expires first. </li></ul></ul>
Quick review… <ul><li>Protection is automatic once a work is fixed </li></ul><ul><li>Very little creative originality is necessary </li></ul><ul><li>Registration is not necessary </li></ul><ul><li>“ Works made for hire” vest copyright with the institution/organization, not the author </li></ul><ul><ul><li>FYI: colleges & universities usually do not claim copyright in faculty works </li></ul></ul><ul><li>Joint authors each have equal, full copyright </li></ul>
5 questions to assess use <ul><li>Is this in the Public Domain? </li></ul><ul><li>Is there a license? </li></ul><ul><li>Is there a specific exception? </li></ul><ul><li>Does Fair Use apply? </li></ul><ul><li>Who can I ask for permission? </li></ul>
<ul><li>Publishers </li></ul><ul><li>or </li></ul><ul><li>Creators? </li></ul><ul><li>If this system is for creators, it is crazy </li></ul>Who is copyright for? Adapted from Larry Lessig’s “The architecture of access to scientific knowledge” (http://vimeo.com/22633948)
<ul><li>The creators don’t get any money </li></ul><ul><li>Their works aren’t accessible </li></ul><ul><li>They don’t have a business model that requires payment to read their stuff </li></ul>Crazy because … Adapted from Larry Lessig’s “The architecture of access to scientific knowledge” (http://vimeo.com/22633948)
Publishers… Adapted from Larry Lessig’s “The architecture of access to scientific knowledge” (http://vimeo.com/22633948) Use copyright for non-knowledge ends, e.g., for profits and to sustain societies
Per Larry Lessig: Adapted from Larry Lessig’s “The architecture of access to scientific knowledge” (http://vimeo.com/22633948) “ Not one author [creator] should support this system” So…what should they do???
Giving away copyright?! <ul><li>Copyright can be transferred only in writing </li></ul><ul><li>Licensing allows specific rights to be retained: </li></ul><ul><ul><li>Authors keep copyright and license other rights (e.g., first publication) </li></ul></ul><ul><ul><li>Publishers take copyright and license rights back (e.g., reproduction, derivatives) </li></ul></ul><ul><li>Addenda can be added to publication agreements to open the door for negotiating rights retention </li></ul>
Bundled vs. Unbundled <ul><li>Rights publishers traditionally want : </li></ul><ul><ul><li>Reproduction, distribution, derivatives…ALL!! </li></ul></ul><ul><li>Rights publishers actually need : </li></ul><ul><ul><li>Right of first publication…that’s it, really </li></ul></ul><ul><li>Specific rights can be bundled or unbundled by licenses (e.g., Creative Commons) or addenda (e.g., SPARC) or negotiation </li></ul><ul><li>Open Access publishers usually do not require full transfer of copyright </li></ul>
“ If…then” – the secrets of reuse <ul><li>By the author </li></ul><ul><ul><li>If full rights retained, then limitless (within confines of law, that is) </li></ul></ul><ul><ul><li>If some rights retained, then within limits of negotiated rights </li></ul></ul><ul><ul><li>If no rights retained, then fair use only </li></ul></ul><ul><li>By others </li></ul><ul><ul><li>If published open access, then freely accessible – and possibly more </li></ul></ul><ul><ul><li>If published under a Creative Commons license, then within limits defined by the license </li></ul></ul><ul><ul><li>If published traditionally, then fair use only </li></ul></ul>
Fair Use <ul><li>There is no easy formula for determining fair use, but there are four factors to consider: </li></ul><ul><li>The nature of the work (factual, creative) </li></ul><ul><li>The purpose of the use (educational, for-profit) </li></ul><ul><li>Amount of the work being used </li></ul><ul><li>The potential impact of the use on the market for the original </li></ul>
Take home points <ul><li>We all own copyright until we sign it away </li></ul><ul><li>Contracts are negotiable, including publishing contracts </li></ul><ul><li>Think ahead to how you might want to use your work </li></ul><ul><li>Experimentation via CC licenses, attaching addenda or negotiating isn’t scary and doesn’t negate peer-review prestige </li></ul>
<ul><li>This work was created by Molly Keener for the 14 th ACRL National Conference, Scholarly Communication 101 workshop, and updated by Molly Kleinman and Kevin Smith in March 2010. It was last updated by Molly Keener on June 6, 2011. </li></ul><ul><li>This work is licensed under a Creative Commons Attribution Non-Commercial Share Alike 3.0 United States license: http://creativecommons.org/licenses/by-nc-sa/3.0/ . </li></ul>