Copyright and Licensing – Part 2

Two weeks ago, I published Part 1 in our copyright and licensing series. Here is Part 2, a guest post by our Editor-in-Chief, Tom Olijhoek.

[Both of these posts are now available in Croatian, thanks to the fantastic translation efforts of Lovorka Caja, librarian at Rudjer Boskovic Institute and Jadranka Stojanovski, Assistant Professor at University of Zadar.]

The first part of the post covers 9 different scenarios that have different copyright and licensing conditions. Each scenario illustrates the most common set of conditions that we see for an author’s published work. Each scenario is followed by the two questions from the Copyright and Permissions section of the DOAJ Application form, illustrating how those questions should be answered: does the author hold the copyright without restriction; does the author retain publishing rights without restriction? There is a level of complexity in trying to illustrate this issue because there are 3 main variables that come into play:

• has the author transferred copyright?
• has a Creative Commons license being applied to the work and if so, which type?
• has a separate publishing agreement been signed with the publisher?

The second part is a list of examples from publishers who have open access programs. We will update this list with more examples as we find them, particularly those that have unique characteristics.

The last part is for those readers who want to get into more detail on this subject and is a list of recommended reading on this topic. Let us know if you have more!

Tom wrote this piece with the intention that it be used as a point of reference for open access copyright issues.  We hope that it will clear the way for authors trying to navigate different publishers copyright and licensing conditions; and for publishers who want to make sure that they publish the most open and accessible content.

As always, we welcome your feedback!

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A) Applying a License

A person who wants to publish his / her work can choose to do so under the conditions of a public license. The most common of these is a Creative Commons license and this license is nothing more than a permission from the “rights-holder”, or licensor, to another person to use the work in ways described by the license. (The rights-holder is the entity that may grant rights to others.) It is important to understand that the licensor is not subject to the conditions of the license, except when the given license is exclusive. In this case, the licensee receives an exclusive right to use the work in the ways described in the terms of the license and the licensor can no longer use the work, as detailed in the terms of the license. (There can be other situations where the rights-holder or licensor is subjected to the conditions in the license.)

B) Applying Copyright

When applying copyright, there are really only two states: where the author retains copyright—the author remains the rights-holder—and where the author transfers copyright to a publisher and the publisher becomes the rights-holder.

The Author Retains Copyright…

…and Publishes Using a CC BY License

If the author retains copyright and wants to publish the work with a CC BY license, everyone is granted the right to use the work as described by the CC BY license. In addition the author must grant the publisher the right to publish the work. This can be a contract for exclusive or non-exclusive publishing rights. Exclusive publishing rights do not match the conditions of a CC BY license so in principle it should not be possible for this combination to exist. However, in reality this combination does exist and the author loses the publishing rights to his / her work. Even though there is a conflict with the conditions of the CC license, the contract is legally valid. So, with a CC BY license and exclusive publishing rights transferred to the publisher:

Does the author(s) hold the copyright without restrictions? No
Does the author(s) retain publishing rights without restrictions? No

If the author has signed a contract with the publisher about non-exclusive publishing rights, the author keeps the publishing rights. So with a CC BY license and non-exclusive publishing rights granted to the publisher:

Does the author(s) hold the copyright without restrictions? Yes
Does the author(s) retain publishing rights without restrictions? Yes

…and Publishes Using Another CC License

If the author retains copyright and the work is published with a more restrictive license—for example a CC BY-NC license—AND an exclusive publishing contract has been signed with a single publisher, both copyright and publishing rights are restricted…

Does the author(s) hold the copyright without restrictions? No
Does the author(s) retain publishing rights without restrictions? No

… but in cases where the author has a non-exclusive publishing contract with a publisher and the work is published with a more restrictive license, the author retains all the rights to publish the work elsewhere, including commercially, because she / he is not subject to the conditions of her / his own license, regardless of the type of CC license chosen.

Does the author(s) hold the copyright without restrictions? Yes
Does the author(s) retain publishing rights without restrictions? Yes

…but the Publisher retains Commercial Rights

If the author retains copyright but has signed an agreement with the publisher to transfer all commercial rights and / or grant the publisher exclusive publishing rights of the work, then the author has restricted copyright and has restricted publishing rights.

Does the author(s) hold the copyright without restrictions? No
Does the author(s) retain publishing rights without restrictions? No

The Author Transfers Copyright…

…To the Publisher Who Publishes the Work Under a CC BY License

If the author transfers copyright to a publisher, the publisher may decide to publish the work using a CC BY license. In this case, the author is bound by the conditions of the CC BY license since s/he is no longer the rights-holder. By transferring copyright, publishing rights are also transferred, …

Does the author(s) hold the copyright without restrictions? No
Does the author(s) retain publishing rights without restrictions? No

*this blog post was updated on 20th August 2019 to remove a margin case illustrating a No/Yes combination to these two questions.

…To the Publisher Who Publishes the Work Under Another CC License

If the author transfers copyright to a publisher and the publisher publishes the work using another CC license, for example a CC BY-NC license, then the author can no longer use the work commercially because s/he is subject to the conditions of the license granted by the copyright owner. The copyright owner is the rights-holder, the publisher. The author has the right to publish the work elsewhere but only non-commercially.

Does the author(s) hold the copyright without restrictions? No
Does the author(s) retain publishing rights without restrictions? No

In the case of an exclusive publishing agreement the author has no right to publish the work elsewhere, either commercially or non-commercially.

Does the author(s) hold the copyright without restrictions? No
Does the author(s) retain publishing rights without restrictions? No

 

C) Examples of copyright statement

The copyright statements from the following publishers were taken from their web sites and are correct at the time of writing. Where NO has been recorded against ‘unrestricted copyright’, these are cases where authors supposedly retain copyright but the publishers retain the rights to all commercial uses of the work and / or exclusive publishing rights.

BioMed Central | Copernicus | Dove Press | Elsevier | Hindawi | Institute Of Slavic Studies Of The Polish Academy Of Sciences | Nature | PAGEPress Publications | PLoS | SAGE

SCORE Author copyright unrestricted / Author publishing rights unrestricted

BioMed Central

SCORE Yes / Yes

Authors publishing with BioMed Central retain the copyright to their work, licensing it under the Creative Commons Attribution License which allows articles to be re-used and re-distributed without restriction, as long as the original work is correctly cited. BioMed Central is owned by Springer Science+Business Media, and also hosts the SpringerOpen platform.

Copernicus Publications

SCORE Yes / Yes

• Copyright on any article is retained by the author(s). Regarding copyright transfers please see below.
• Authors grant Copernicus Publications a license to publish the article and identify itself as the original publisher.
• Authors grant Copernicus Publications commercial rights to produce hardcopy volumes of the journal for sale to libraries and individuals.
• Authors grant any third party the right to use the article freely as long as its original authors and citation details are identified.
• The article and any associated published material is distributed under the Creative Commons Attribution 3.0 License

Dove Press

SCORE No / No

Open Access is a publication model where neither readers nor a reader’s institution are charged for access to articles or other resources. Users are free to read, download, copy, distribute, print, search, or link to the full texts of these articles for any non-commercial purpose. Authors who publish with Dove Medical Press (DMP) retain the copyright and moral rights in their work.

The copyright is retained by the author subject to the grant of the exclusive license to DMP. DMP publish the author’s published material under a Creative Commons attribution-noncommerical license:http://creativecommons.org/licenses/by-nc/3.0/. Users of the author’s published article are free to use, distribute, reproduce, and create adapted works using the published paper, but only where the use is for non-commercial purposes and the author and Dove are properly attributed. Dove are entitled to manage permissions for commercial use of the author’s published paper.

Elsevier Publishing

SCORE No /No

User Rights
All articles published open access will be immediately and permanently free for everyone to read, download, copy and distribute. Permitted reuse is defined by your choice of one of the following user licenses:

Creative Commons Attribution (CC BY): lets others distribute and copy the article, to create extracts, abstracts, and other revised versions, adaptations or derivative works of or from an article (such as a translation), to include in a collective work (such as an anthology), to text or data mine the article, even for commercial purposes, as long as they credit the author(s), do not represent the author as endorsing their adaptation of the article, and do not modify the article in such a way as to damage the author’s honor or reputation.

Creative Commons Attribution-NonCommercial-NoDerivs (CC BY-NC-ND): for non-commercial purposes, lets others distribute and copy the article, and to include in a collective work (such as an anthology), as long as they credit the author(s) and provided they do not alter or modify the article.

Author Rights
For open access publishing this journal uses an exclusive licensing agreement. Authors will retain copyright alongside scholarly usage rights and Elsevier will be granted publishing and distribution rights.

Rights granted to Elsevier
For both subscription and open access articles, published in proprietary title, Elsevier is granted the following rights:

• The exclusive right to publish and distribute an article, and to grant rights to others, including for commercial purposes.
• For open access articles, Elsevier will apply the relevant third party user license where Elsevier publishes the article on its online platforms.
• The right to provide the article in all forms and media so the article can be used on the latest technology even after publication.
• The authority to enforce the rights in the article, on behalf of an author, against third parties, for example in the case of plagiarism or copyright infringement.

Hindawi

SCORE Yes / Yes

Open Access authors retain the copyrights of their papers, and all open access articles are distributed under the terms of the Creative Commons Attribution License, which permits unrestricted use, distribution and reproduction in any medium, provided that the original work is properly cited. The use of general descriptive names, trade names, trademarks, and so forth in this publication, even if not specifically identified, does not imply that these names are not protected by the relevant laws and regulations.

Institute Of Slavic Studies Of The Polish Academy Of Sciences

SCORE Yes / Yes

The authors, through granting the Institute of the Slavic Studies, Polish Academy of Sciences (the publisher of the journal) the right to publish the work, accept the terms and conditions of the CC BY 3.0 PL license (http://creativecommons.org/licenses/by/3.0/pl/); which allows the Institute to reproduce, distribute, publicly perform, create adaptations, and to commercially use the work, if stated by the author. The authors grant the Institute a non-exclusive license to publish the work in paper form; the number of copies shall not exceed 200. The Institute has the sole right to determine all the technical aspects of the publication, including the price and the form of distribution. Furthermore, the authors grant the Institute a non-exclusive license to use the work in the following way:

1. sell and distribute the work in form other than selling copies, store it in electronic form, distribute parts of or all of the work for the purpose of the promotion of the Institute via computer networks and other digital media; record the work in any form, including digital media, and reproduce it in any form, including digital media;
2. record the work in the memory of public computers located in the office of the Institute (or rooms used by the Institute);
3. lend or lease copies of the work;
4. make the work available, and send it through multi-media networks, esp. the Internet and Intranet, on-line, on demand, including making the work publicly available, in order that anyone can obtain access to the work or its parts wherever and whenever it is convenient for them.

Nature Publishing Group

SCORE No / No

NPG author license policy
This publishers’ policy applies to all journals published by the Nature Publishing Group (NPG), including the Nature journals. Nature Publishing Group’s policies are compatible with all major funders open access and self-archiving mandates. NPG does not require authors of original (primary) research papers to assign copyright of their published contributions. Authors grant NPG an exclusive license to publish, in return for which they can reuse their papers in their future printed work without first requiring permission from the publisher of the journal. For commissioned articles (for example, Reviews, News and Views), copyright is retained by NPG.

Open access articles in NPG journals are licensed under Creative Commons licenses. These provide an industry-standard framework to support easy re-use of open access material. Under Creative Commons, authors retain copyright of their work. All authors are required to complete a license to publish form before publication – this form can be downloaded from the journal’s instructions to authors.

e.g. from American College of Gastroenterology:

LICENSE TO PUBLISH TERMS 1. In consideration of the Society evaluating the Contribution for publication (and publishing the Contribution if the Society so decides) the Author(s) grant to the Society for the full term of copyright and any extensions thereto, subject to clause 2 below, the right and irrevocable license: (a) to edit, adapt, publish, reproduce, distribute, display and store the Contribution in all forms, formats and media whether now known or hereafter developed (including without limitation in print, digital and electronic form) throughout the world; (b) to translate the Contribution into other languages, create adaptations, summaries or extracts of the Contribution or other derivative works based on the Contribution and exercise all of the rights set forth in (a) above in such translations, adaptations, summaries, extracts and derivative works; (c) to license others to do any or all of the above, including but not limited to the right to grant readers the right to use the Contribution under the Creative Commons license selected above; and (d) to re-license article metadata without restriction (including but not limited to author name, title, abstract, citation, references, keywords and any additional information, as determined by the Society). 2. Ownership of the copyright in the Contribution remains with the Author(s). However, the Author(s)’ re-use rights in the Contribution are subject to the rights and restrictions set forth below in this Section, and in clause 3 and 4(a). After the Author(s) have submitted the Contribution to the Society hereunder, the Author(s)’ rights to re-use the Contribution shall be the same as those set forth in the Creative Commons license selected above, with the following additional re-use rights: (a) to reproduce the Contribution in whole or in part in any printed volume (book or thesis) of which they are the Author(s); and (b) to reuse figures or tables created by the Author(s) and contained in the Contribution in oral presentations and other works created by them.

PAGEPress Publications

SCORE Yes / Yes

PAGEPress has chosen to apply the Creative Commons Attribution NonCommercial 3.0 License (CC BY-NC 3.0) to all manuscripts to be published.

Authors who publish with this journal agree to the following terms: 1. Authors retain copyright and grant the journal right of first publication with the work simultaneously licensed under a Creative Commons Attribution License that allows others to share the work with an acknowledgement of the work’s authorship and initial publication in this journal. 2. Authors are able to enter into separate, additional contractual arrangements for the non-exclusive distribution of the journal’s published version of the work (e.g., post it to an institutional repository or publish it in a book), with an acknowledgement of its initial publication in this journal. 3. Authors are permitted and encouraged to post their work online (e.g., in institutional repositories or on their website) prior to and during the submission process, as it can lead to productive exchanges, as well as earlier and greater citation of published work.

PLoS

SCORE Yes / Yes

PLOS applies the Creative Commons Attribution (CC BY) license to works we publish (read the human-readable summary or the full license legal code). Under this license, authors retain ownership of the copyright for their content, but allow anyone to download, reuse, reprint, modify, distribute and/or copy the content as long as the original authors and source are cited. No permission is required from the authors or the publishers. Appropriate attribution can be provided by simply citing the original article (e.g., Huntingtin Interacting Proteins Are Genetic Modifiers of Neurodegeneration. Kaltenbach LS et al. PLOS Genetics. 2007. 3(5) doi:10.1371/journal.pgen.0030082). For any reuse or redistribution of a work, users must also make clear the license terms under which the work was published. This broad license was developed to facilitate free access to, and unrestricted reuse of, original works of all types. Applying this standard license to your own work will ensure that it is freely and openly available in perpetuity.

SAGE Publications

SCORE No / No

SAGE requires the author as the rights holder to sign a Journal Contributor’s Publishing Agreement for all articles we publish. SAGE’s Journal Contributor’s Publishing Agreement is a license agreement under which the author retains copyright in the work but grants SAGE the sole and exclusive right and license to publish for the full legal term of copyright. Exceptions may exist where assignment of copyright is required or preferred by a proprietor other than SAGE. In this case, copyright in the work will be transferred from the author to the society.

What are my rights as author?
A – The following SAGE’s Global Journal Author Reuse Policy, effective as of March 20, 2013:

• You retain copyright in your work.
• You may do whatever you wish with the version of the article you submitted to the journal (version 1).
• Once the article has been accepted for publication, you may post the accepted version (version 2) of the article on your own personal website, your department’s website or the repository of your institution without any restrictions.
• You may not post the accepted version (version 2) of the article in any repository other than those listed above (ie you may not deposit in the repository of another institution or a subject repository) until 12 months after publication of the article in the journal.
• You may use the published article (version 3) for your own teaching needs or to supply on an individual basis to research colleagues, provided that such supply is not for commercial purposes.
• You may use the article (version 3) in a book you write or edit any time after publication in the journal.
• You may not post the published article (version 3) on a website or in a repository without permission from SAGE.
• When posting or re-using the article please provide a link to the appropriate DOI for the published version of the article on SAGE Journals (http://online.sagepub.com)

All commercial or any other re-use of the published article should be referred to SAGE. More information can be found at: http://www.sagepub.com/journalsPermissions.nav.

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Recommended reading

1. Introducing Copyright, Julien Hofman and Commonwealth of Learning, 2009. License CC-BY-NC-ND. ISBN 978-1-894975-32-2.
2. Owning and Using Scholarship: An IP Handbook for Teachers and Researchers. 2014. Copyright 2014 by Kevin L. Smith, JD. Fair use allowed. ISBN 978-0-8389-8747-6
3. Open_Content: A_Practical_Guide_to_Using_Creative_Commons_Licenses. 2014. Dr. Till Kreutzer. License: CC-BY. ISBN: 978-3-940785-57-2
4. Capitalism 3.o. A guide to reclaiming the commons. Copyright © 2006 by Peter Barnes. Electronic version is licensed under the CC-BY-NC-ND 2.5 License (some restrictions apply). ISBN-13: 978-1-57675-361-3
5. Copyright law for librarians and educators : creative strategies and practical solutions. Kenneth D Crews. 2006. Copyright © 2006 by Kenneth D. Crews. Fair use allowed. ISBN-13: 978-0838909065
6. Copyright for A level media studies. http://copyrightuser.org/schools/a-level-media-studies/
7. Digital archive of primary sources on copyright from the invention of the printing press (c. 1450) to the Berne Convention (1886) and beyond. Relaunch March 27, 2015. http://www.copyrighthistory.org/cam/index.php
8. Think like a commoner. David Bollier. Book 2015. Website: http://www.thinklikeacommoner.com/. License CC-BY-NC-SA. ISBN 978-1-55092-559-3
9. Access to knowledge in the age of intellectual property. Gaëlle Krikorian and Amy Kapczynski. 2010. Creative Commons BY-NC-ND. ISBN 978-1-890951-97-9
10. Copyright at Common Law in 1774 . H. Tomás Gómez-Arostegui. CREATe Working Paper Series DOI: 10.5281/zenodo.12467. Centre for Copyright and New Business Models in the Creative Economy (CREATe)
11. The digital public domain, foundations for an open culture. Melanie Dulong de Rosnay and Juan Carlos De Martin. http://www.openbookpublishers.com/product/93. CC-BY 3.0. ISBN (Digital PDF) 978-1-906924-47-8
12. So what about copyright, What Artists Need to Know About Copyright & Trademarks. David Bollier, Gigi Bradford, Laurie Racine and Gigi B. Sohn. Produced by Public Knowledge. License CC-BY-NC. ISBN: 1-4116-5379-3
13. Opening Science, the Evolving Guide on How the Web is Changing Research, Collaboration and Scholarly Publishing. 2014. Edited by Sönke Bartling & Sascha Friesike. http://book.openingscience.org/. License CC-BY-NC ISBN 978-3-319-00026-8. DOI 10.1007/978-3-319-00026-8
14. Creative Commons, a user guide. Simone Aliprando. 2011. www.aliprandi.org/cc-user-guide. License CC-BY-SA 3.0. ISBN: 9788895994550