Scholarly Communication and Publishing

Sample material:

• Sample Copyright Transfer Agreements
• UW-Madison Faculty Senate-endorsed Author Rights Addendum

Why controlling your copyright matters

Managing copyright wisely can significantly enhance the values of the educational system. Decisions about copyright can:

• Provide the widest possible freedom and flexibility for faculty and others to employ their work for teaching, learning, and research in a fast-changing technological environment.
• Strengthen universities as institutions through which faculty and others can achieve their aspirations for teaching, learning, and research.
• Foster the Constitutionally defined purpose of the copyright law–the encouragement of learning–through the minimally constrained use of copyrighted material in teaching, learning and research.

The fundamental business of education is to create and share knowledge. The existing marketplace for intellectual property often accomplishes this through the strong and productive balancing of creators’ and users’ rights that copyright law is designed to achieve. However, the effective sharing of knowledge is sometimes jeopardized in the case of specialized scholarly monographs and journal articles, where reading audiences are relatively small and publishing outlets limited in number.

Especially with regard to journal articles, authors commonly give away their ownership rights in exchange for prestigious publication. As a result, publishers are at liberty to control the use of the author’s work, sometimes imposing significant costs and administrative burdens on using the work for non-commercial education purposes. Rarely does the author have any voice in deciding how the work will be used.

Authors are encouraged to read and understand the agreements they sign with publishers.

Options and recommendations

Copyright law gives the creator of copyrighted work exclusive rights, including principally:

• the right to publish the work in print or other media,
• to reproduce it (e.g., through photocopying),
• to prepare translations or other derivative works, and
• to authorize others to exercise any of these rights.

Copyright creators may transfer some or all of these rights to a publisher. The copyright creator may also retain ownership but grant licenses to other parties to exercise one or more of these rights. Copyright licenses may be exclusive or non-exclusive; for a specified period of time or for the full term of the copyright; royalty-free or royalty-bearing; for one medium or many; or defined or restricted in various other ways.

Faculty and other academic authors have three options, broadly speaking, for managing their copyrights:

Option 1

Use of this option, though common, is ill advised because it allows the publisher to prohibit or heavily burden many republication and educational uses of copyrighted works, without even consulting the author.

Option 2

The difficulty in using the second option lies in the author’s need to anticipate everything he or she may wish to do with the work, especially over time as information technology transforms both publishing and instruction.

Option 3

Faculty and other academic authors maximize their freedom to use their own work, and that of like-minded colleagues, when they decline to transfer copyrights to their scholarly work to publishers, but routinely grant publishers exclusive licenses for the first formal publication of their work (in print, digital, or some other form) and non-exclusive rights for at least the following purposes:

• Subsequent republication of the work
• Reformatted publication (e.g., works transferred from print to microform and digital forms).
• Distribution through document delivery services
• Reproduction in course packs.

Faculty and other academic authors may often, but not routinely, wish to grant non-exclusive licenses to publishers for the following additional purposes:

• Creating derivative works (e.g., translations, multi-media adaptations, etc.)
• Public performance and display of literary, musical, dramatic, and choreographic works, motion pictures, and other audiovisual works.

Additionally, the grant of both exclusive and non-exclusive rights may be time-bound. There may be circumstances, for instance, in which faculty and other authors might wish to limit the duration of an exclusive license to first formal publication or of a non-exclusive right to subsequent republication or the creation of derivative works. Or one might wish to grant a time-bound exclusive license for activities normally performed under a non-exclusive license. (For example, an author may wish to grant an exclusive right to print publication and distribution to a journal for only one year. After that time, the author would be free to publish the work in another print publication.)

Finally, faculty and other academic authors who retain their copyrights may wish to grant a limited set of rights that any reader can exercise without explicit permission. These rights might involve the use of the author’s work for non-profit educational purposes.

There are four essential features of Option 3:

1. The author retains all of his or her rights under the copyright law. This is essential to fostering the values described above.
2. The right of first formal publication is licensed to the publisher and secures the publisher’s essential business interests while advancing the author’s interest in prestigious publication. This license for formal publication does not prohibit the author from using, if he or she wishes, a variety of informal means of circulating the work before formal publication, including self-publication (on a personal Web site) or unjuried publication on Internet lists used by a number of disciplines to provide early exposure to research results.
3. The non-exclusive rights granted for other activities permits the publisher to pursue sometimes important but secondary lines of business (such as providing works to content aggregators), but allows the author and others he or she may license to do the same. This freedom for alternative means of action creates now absent incentives for everyone concerned to act in competitive, cost-effective ways.
4. The author should be in a position to create any blanket grant of re-use rights he or she wishes, as a way of advancing education and simplifying rights management.

Creative Commons is a non-profit corporation founded to assist authors in granting limited rights to readers and “offers a flexible range of protections and freedoms for authors and artists. [They] have built upon the ‘all rights reserved’ of traditional copyright to create a voluntary ’some rights reserved’ copyright.” Its website provides additional guidance.

Where to start

As an author, it is up to you to understand the nature of the market in which you are publishing and to determine the option that maximizes your individual interests as well as those of the broader academic community.

If you decide you would like to retain your copyright and license specific uses to the publisher, you may want to develop your own publishing agreement and substitute that for the publisher’s contract. Some publishers have accepted such agreements without objection. Click here to look at a sample Publication Agreement.

Alternatively, you should grant the publisher those rights needed to ensure that your work can be included (at least on a non-exclusive basis) in aggregations of several publishers works (for example, in BioOne, Lexis-Nexis). Some publishers have accepted such agreements without objection. Click here to look at a sample Publication Agreement.

If the publisher objects or you do not want to create your own document, try amendingmay wish to amend the publisher’s version of the copyright transfer agreement. Sometimes changing a few words (exclusive to non-exclusive, for example) or substituting language for a particular section may be all that is needed. In many instances, publishers will accept the changes. Click here to look at a sample Publisher’s Contract.

If the publisher does not accept your change, take the opportunity to talk with them. What rights must they hold to conduct their business? How specifically would the rights that you have asked to retain interfere with their business? How might you work together to address these concerns? Perhaps a few further modifications will be all that is needed.

Finally, if the publisher remains adamant, review your options. Do you need to be published in this particular publication? Is there a viable alternative? If so, withdraw the work and let the publisher know why. If not, try to retain some rights, such as the right to use your own work in your research and teaching, to republish the work in a collection of your own works, and to post your work on the web. Many scholarly publishers are already granting such rights.

But don’t stop there. Encourage your colleagues to bring up the issue of retaining copyright with publishers. If enough authors start advocating for their rights, publishers may start to listen.

You might also want to raise copyright ownership as a topic of discussion on your campus. An institutional policy that recommends or requires faculty to retain the copyright to their scholarly works may have greater clout in negotiating a contract than a individual faculty member’s principles. Witness the Johns Hopkins University School of Public Health policy in the example above.

Managing your copyright wisely can go a long way toward ensuring access to your work for the academic community. It can also be an important step in taking back control of the scholarly communication system.

Managing your copyright wisely can go a long way toward ensuring access to your work for the academic community. It can also contribute to positive change in the scholarly communication system.

Most of the information in this document is derived from material in the Create Change website, sponsored by the Association of Research Libraries, the Association of College and Research Libraries, and the Scholarly Publishing & Academic Resources Coalition. The information provided on managing your copyrights is intended only as guidance, not as a substitute for competent legal counsel. Please consult an attorney if you have questions regarding a specific contract.