Copyright and Licensing – Part 4

This is the fourth post in a series, by our Editor-in-Chief Tom Olijhoek, which focusses on the details of copyright and licensing, how they are applied to works and which options and best practices DOAJ recommends. You can read all 4 installments in this series here. We also have a help page dedicated to Copyright and Licensing.

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In open access publishing, copyright and licensing issues are often not well understood by many and are not clearly described on journal websites. Some publishers we speak to think that they have to pay a fee to establish Creative Commons licensing on their site. Just as DOAJ is a free service, Creative Commons licenses from CreativeCommons.org are also free.

At DOAJ we require open access publishers to use licenses for publications, and we recommend Creative Commons licenses as the best practice because these are free licenses tailor-made to meet the needs of open access. Publishers are also allowed to describe their own licenses as long as these comply and match Creative Commons licensing terms.

We recommend that publishers leave the copyright with the authors. Although this is not a requirement for inclusion in DOAJ nor for using Creative commons licenses, we think that authors should retain their rights, including their copyright for their work. Copyright is part of the larger framework of intellectual property rights that encompasses publishing rights, reproduction in the form of video or audio, patents trademark, research data and more.

All Rights Reserved

A number of publishers use the term ALL RIGHTS RESERVED incorrectly in the context of open access publishing and often in direct opposition to the “open access” state of the content. The us of this term is always wrong in the setting of open access because some rights will always be shared depending on the open access license used.

Copyright Retained by the Author

If authors retain the copyright of their work and publish open access then they can claim copyright and full intellectual property rights with some rights reserved. Under these conditions publishers can then claim rights of first publication and this does not conflict with the copyright remaining with the authors.

For instance, when you publish using CC-BY-NC and retain your copyright, you also reserve the commercial rights exclusively for yourself, unless you sign an agreement with a publisher that transfers commercial rights (some rights reserved).

Copyright Retained by the Author but Author rights restrained

Sometimes publishers seem to think that open access licensing conditions apply only to readers and not to authors. This is wrong. Consider the following case:

 

The copyright is retained by the author but [publisher]
‘allows authors the use of the final published version of an article (publisher pdf) for self-archiving (author’s personal website) and/or archiving in an institutional repository (on a non-profit server) after an embargo period of 12 months after publication.The published source must be acknowledged and a link to the journal home page or article’s DOI must be set. The author MAY NOT self-archive the articles in public and/or commercial subject based repositories.’
According to the website of the publisher, for works published under a CC BY-NC-ND license:‘users can read, copy and distribute the work in any medium or format for non-commercial purposes, provided the authors and the journal/book are appropriately credited. Under this license, users are not allowed to remix, transform or build upon the published material.’

The policy on author archiving from this publisher is clearly in conflict both with the licensing conditions and with the copyright policy. Even without the embargo clause this policy is wrong, especially since authors who retain the copyright are not bound by the conditions of the license at all: they can do whatever they want with their work (unless they have transferred their commercial rights to the publisher which is not the case here.)

Copyright Transferred to the Publisher

If on the other hand the copyright is transferred to the publisher, the publisher can claim copyright but never ALL RIGHTS RESERVED since all the other (intellectual property) rights remain with the author.

Sometimes the publishers will put a copyright clause in the website, with the intention that this means they claim copyright for the layout and design of the site. This is OK as long as the copyright clause explains this. If site simply states ‘Copyright Society of Physical Sciences’, or something similar, this is not acceptable as it is unclear what the copyright statement applies to.

Copyright Transfer Agreement in conflict with Open Access

In some cases publisher use a copyright transfer agreement that conflicts with open access licensing.

For instance let us regard this case where a CC BY-NC license is used on a site:

‘‘ [you] hereby transfer your copyright to us (the publisher). In particular, this means that you grant us the exclusive right, for the full term of copyright and any renewals/extensions thereof, both to reproduce and distribute your article (including the abstract) ourselves throughout the world in printed, electronic or any other medium”

There is clearly a conflict here since all users under a Creative Commons License have the right to reproduce, distribute etc, so the right of the publishers cannot be exclusive or all rights reserved. The transfer agreement should be corrected by replacing ‘exclusive right’ with ‘non-exclusive right.

Commercial Rights Transferred to the Publisher

If only commercial rights are transferred to the publisher, the author retains (part of) the copyright in addition to  all other intellectual property rights. In this case the publisher cannot claim copyright or ‘all rights reserved.’

Example:

‘Authors sign an exclusive license agreement, where authors have copyright but license exclusive rights in their article to the publisher**.

**This includes the right for the publisher to make and authorize commercial use,…

In this particular case, the journal also had a copyright statement that stated that all rights were reserved in the publisher’s favour.

This post is by no means complete The different examples shown are just a number of often encountered cases where copyright and licensing conditions do not match. Other cases with less obvious inconsistencies undoubtedly exist. We invite the reader of this blog post to alert us to such cases.

 

 

 

 

 

 

 

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