Tutorial 19e: Open Access definitions and clarifications, part 5: copyright
November 24, 2012
In the previous section, we discussed the various licences that can be used for open-access articles. But that may have been premature, because licences are agreements whereby copyright holders waive some of their rights, and we hadn’t actually talked about copyright first. So let’s do that now.
(This post is relevant to subscription publishing as well as open access.)
Who owns copyright in a new work?
In general, whenever you do any creative work, you own the copyright of that work — whether it’s painting a picture, composing a tune or writing an academic paper. You don’t need to do anything special to obtain copyright (although back in the day registration used to be necessary in some jurisdictions).
There are a couple of exceptions to this general rule. One of the most important is a work for hire. When you are paid to create a copyrightable work, the terms of the contract under which you do it may stipulate that your employer owns the work. This is common, and quite reasonable, in some situations: for example, my day-job employer Index Data owns the copyright to the code I write for them. It’s much less common in other situations — in particular, I have never heard of a university taking copyright for its researchers’ works.
Another important exception to the usual you-wrote-it-you-own rule is that all work created by the US Government is public domain: that is, no-one owns it, there is no copyright, and anyone can do whatever they like with it.
By the way, anything that you own the copyright for, including your manuscripts, you can place in the public domain. (The Creative Commons CC0 tool exists to help you do this unambiguously.)
When your manuscript is accepted by a journal for publication, many publishers will ask you to transfer copyright to them, often insisting that it is an absolute requirement for publication. They have a form for you to sign; once you have done this, you no longer own your work. (Since this post is supposed to be purely expository and not at all evangelistic, I will refrain from comment on this issue.)
There are a few alternatives to copyright transfer.
First, if the work is already in the public domain — for example because it was created by an employee of the US Government as part of their job — then there is no copyright to transfer. In this case, the journal is already free to publish the work (as indeed is any other journal), and they will usually just ask the author to make a statement certifying the PD status of the work. (JVP’s form has this option.) I don’t know how such journals would react to non-Government employees who had dedicated their work to the public domain. It would be interesting to find out.
Second, some journals do not require the author to transfer copyright, but to give them a licence to publish. Although this can be a liberal option, such licences often impose many restrictions on the author, so that you’re not allowed (because of having signed the contract) to do things that you might, as copyright holder, expect to do. In some cases, the value of having retained copyright is very small.
Finally, most open-access journals that use a true open-access licence such as CC BY allow authors to retain copyright because, well, it makes no difference to them who holds it. Whoever the copyright holder is, third parties are in the exact same situation: they are free to do whatever they want with it provided that they acknowledge the authorship.
Note that authorship is a different matter from holding copyright. Even if you transfer copyright of your work to a publisher, you still have the right to be identified as the author (unless of course you waive that separately).
How licences work with copyright
If you hold copyright in a work, I have essentially no rights regarding it, beyond what you give me. I can’t print it, I can’t make copies for myself or others, I can’t post it on my web-site, I can’t translate it, I can’t make derived works, I can’t use images from it on Wikipedia, and so on.
So in that state, it’s essentially useless.
This is why you release your work under a licence. Licences waive some of the copyright holder’s rights (i.e. some of the restrictions placed on others’ use of your work). You may do this for financial gain (“you can sell copies of my book provided you pay me 10% of the cover price as a royalty”), or out of the goodness of your heart (“public money paid me to do this research, so I am giving the result to the world.”)
The specific set of rights that you give varies with the license. Restrictive licences may give the right only to read the work. Others may allow various forms of re-use, perhaps limited as to extent or field of applicability. Some licences allow certain forms of use in non-commercial contexts, and less in commercial contexts. Choosing an appropriate licence is an art-form: we’ll talk more about it in a subsequent post.
Only the copyright holder can grant someone a licence to their work. The holder may choose to give different licences to different people. For example, you might make your paper available under CC BY-NC, which forbids commercial use; then if someone wants to use your work commercially, they might offer you money in exchange for furnishing the work to them on terms that allow commercial use.
Patents, copyrights and trademarks are often referred to under the blanket term “intellectual property”, or IP for short. This is unfortunate: they are actually three very different branches of law, and have little in common. That’s one reason that I avoid the misleading term “intellectual property”.
Patents cover inventions, or increasingly often ideas. They must be applied for and paid for, and have a strictly limited term — 20 or 14 years in the US — after which they expire and anyone can use the invention.
Copyrights cover specific works, which may use inventions but differ from them in having a specific fixed form. They apply automatically and don’t need to be applied for; and they last much longer than patents. (The details of copyright terms are complicated, but generally anything you create now will remain under copyright in the US until 70 years after your death.)
Trademarks cover names and logos and exist to prevent consumer confusion that could arise if two similarly named organisations or products exist in the same space. They must be applied for.
Here are some examples. I might have patented the idea of using CT scanning to look inside sauropod vertebrae, if I’d thought of it first. (I’d have had to write the description in terms that sound like an invention, an actual device for using CT.) I couldn’t copyright or trademark that idea. I would hold copyright in any specific paper I wrote using that technique, but could not patent or trademark that paper. And if I started a company to do CT scanning of sauropod vertebrae, I could register its name as a trademark, but I couldn’t patent or copyright it.
For the purposes of academic publishing, copyrights are by far the most important of these areas; patents can arise from research, and introduce their own issues, which we won’t discuss here; trademarks are irrelevant.