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4 Legal Issues in the Production, Dissemination, and Use of the Journal Literature COPYRIGHT BASICS: OWNERSHIP AND RIGHTS1 Basic Rights Conferred by Copyright Law The very broad construct of copyright protects works of authorship and covers scientific works of all kinds in every medium of expression, such as printed journals or computer software. Although copyright protects the tangible expression of the author's created work, it does not protect ideas or facts, such as genome sequences. It only protects the work that describes or expresses the results and analysis of that information. Copyright confers upon the author or copyright owner certain exclu- sive rights, which include the right to reproduce the work in any medium, including digital; the right to make a derivative work, that is, the right to adapt the work, including updating or making further works based on the first work; the right to distribute the work in copies, including digital cop- ies; and a right that is becoming of increasing importance on the Internet, the right to publicly display the work. The exclusive rights under copyright are not absolute. There is the well-known fair use provision, Section 107 of the Copyright Act, which 1This section is based on the presentation by Jane Ginsburg, Morton L. Janklow Pro- fessor of Literary and Artistic Property Law at Columbia Law School. 40
LEGAL ISSUES 41 modifies the exclusive rights of owners. Copyright is limited in time as well. The term of copyright in the United States is now the life of the author plus 70 years. That is a very long time, and it is the same term in the European Union. Ownership of Copyright Copyright ownership vests in the author of the work. However, ac- cording to copyright law, the employer of a work for hire is considered to be the statutory owner of such a work. A work for hire is one prepared by an employee within the scope of his or her employment. As a practical matter, the question of who owns professorial or aca- demic copyright did not arise until relatively recently. That has changed in the past few years, in part because of the rising importance of software. As a result, some universities began to lay claim to software, not only software written by staff but also by professors. Universities traditionally had distin- guished between works by administrators or staff, which they defined as works for hire, and works by professors, which were not considered works for hire. Additionally, given the continuing escalation of journal subscription prices, some universities believed that by owning the copyrights on articles, they could bargain better with the publishers. Finally, the most recent flurry of copyright ownership policies was precipitated by distance education on the Internet. About two-thirds of the universities assert that faculty own the works that they create, subject to a number of fairly typical default-shifting condi- tions. First, if the university has invested substantial resources in the cre- ation of the work over and above resources commonly made available to faculty, then the university is likely to assert ownership in that work. Second, many universities define a category of institutional works that border on the administrative, such as courses that are uniform throughout the university. Those are frequently the objects of university assertion of copyright. Third, many universities have special provisions for "sponsored" re- search (by an outside entity). If a condition of the outside entity is that the university should own the copyright, then the university will assert owner- ship of the resulting work. Fourth, a number of schools will assert copyright ownership if the work qualifies as "technology" or software.
42 ELECTRONIC PUBLISHING When the default position is that the university owns faculty work, there is generally a provision listing the circumstances under which the university will forbear from asserting copyright in faculty-created works. Regardless of who owns copyright in a university, most policies limit the university's or faculty member's exercise of copyright. The most typical constraint on faculty in the exercise of copyright is that the faculty member will be asked to give the university a royalty-free license to make nonprofit university educational use of the faculty member's work product. Often that license applies even after the faculty member has left the university. If the university owns copyright, whether by default or because one of the conditions for transferring ownership back to the university applies, the most typical constraint on the university's exercise of copyright is to allow faculty noncommercial use rights. Some universities will not commercial- ize a work without obtaining the reasonable consent of the faculty member in advance. Furthermore, many universities provide that with respect to course materials, even when the copyright is owned by the university, if the faculty member leaves and goes to teach somewhere else, he or she can take those materials to the next place. Only one university, Columbia, provides that even when the univer- sity owns copyright in a work, it should respond favorably to the creator's request to the university to make the work freely available. Rights That a Faculty Member Gives Up To Be Published Assuming that the faculty member does own copyright to a scientific work, what does he or she have to give up in order to be published in a journal? Interestingly, there is not much difference in the terms between the societies and the commercial publishers. Most publisher agreements do, nonetheless, provide for authors to use and reuse their articles, notably for their own nonprofit use in further works or in teaching. Where there is considerable divergence is with respect to electronic rights. Almost all STM journals publish both in print and in electronic form. Depending on the contract, the author of the article will be permitted to post an abstract of the article with a link to the publisher site, or she may be allowed to post a preprint of the article on her own Web page, or on some other preprint site, but she may not be able to post the final version of the text as edited by the journal. Another variation permits posting of the article but only on restricted access sites. So, what authors can do with their own articles falls well short of open access.
LEGAL ISSUES 43 One might think these policies of publishers would create a lot of public opposition by the authors, but they have not. Why not? The simple and completely unlegal answer is that professors in practice largely ignore these contractual limitations, and they boldly post full text regardless of what their contract says. The authors are basically betting that the STM publishers will not actually enforce that contract against them. Nonetheless, copyright does matter to authors. There is a significant psychological factor in being the owner of the copyright in your work. The universities that take the work-for-hire position--to the extent that their faculty know about it--risk antagonizing their faculty members. There is something very deep seated, even if one is disposed favorably to open ac- cess, in being considered the author and copyright owner of your work. Whether or not copyright will matter to publishers in the future, it will most likely continue to matter to authors. LICENSING2 Licenses are not entirely new, but are a more recent method for distrib- uting STM journals and other digital information. Licenses, or contracts, are private, negotiable agreements. They are specific and very tailored, and that specificity can be very reassuring. Licenses can restrict or they can expand rights that would be granted under copyright law. In that sense, a license is a neutral instrument con- trolled by the parties to the agreement. Licenses used to be regarded as entirely controlled by publishers, at least in the library community, but this is no longer true in all cases. Libraries, working with publishers in the license environment, have in fact made an electronic market possible. Major Licensing Issues for Libraries Not all licenses have been fair or negotiable for libraries. In fact, 10 or 15 years ago, licenses offered by publishers or vendors to libraries were often unacceptable. Some problem areas have been resolved, but others persist. The most difficult areas in which to reach agreement have been the terms for interlibrary loans and guarantees of perpetual access and archiving. 2This section is based on the presentation by Ann Okerson, associate university librar- ian for Collections and Technical Services at Yale University Library.
44 ELECTRONIC PUBLISHING Interlibrary loan is a relatively long established practice whereby a user in an institution that does not have a book or article can request it from another library. Articles are generally photocopied and sent to the requester by fax or by mail. Now that articles are available online, one might expect that interlibrary loans should be able to take place with the supplying li- brary transmitting the article electronically to the requesting user. In fact, very few publisher licenses permit this type of transmission. Most require that articles be printed from the e-version and then forwarded, or they do not permit any interlibrary loan from the electronic version at all. When the interlibrary loan from the e-version is only permitted after it is printed out, the main consequence is that delivery is more cumbersome than it otherwise would be. Where the interlibrary loan for the e-version is not permitted at all, then a serious degradation of access ensues in the electronic environment, especially as libraries move to electronic-only subscriptions. The concern about archiving and perpetual access in licenses is some- what different from this, but it is nonetheless a great concern. Research libraries have indeed attempted to hold onto print subscriptions for their archival and preservation value and to adopt electronic subscriptions to journals for reasons of service and functionality. However, the economic climate is such that many libraries, for lack of resources to support both print and electronic subscriptions, are beginning to drop the print. This is happening even in the biggest research libraries. Libraries have always assumed that the material they pay for will last indefinitely, and users will be able to have long-term access to it. The move- ment to electronic-only suggests two requirements. One is that repositories of electronic journals must be robust, even though currently they are less than optimal. The other is that libraries licensing journals on behalf of their users will want continued access to those e-resources even after their paid access to a given journal stops for some reason. The majority of contracts for electronic journals now do provide lan- guage for continued access, often in perpetuity, but not all do. Further- more, the contracts are very weak because of the inability of most publish- ers to follow through technologically or in a business sense on the promises that are made about the archiving provisions. These major flaws in archiving provisions will be resolved only upon significant discussion and investment by all the stakeholders with regard to archiving responsibilities, costs, and technologies. Meanwhile, as libraries are now canceling paper subscriptions, the official scientific record is at some considerable risk.
LEGAL ISSUES 45 Licenses That Serve Author Interests Better Scientists clearly want their articles to be widely available. Many scien- tists today might like to distribute their own articles on their Web sites, their university sites, their lab sites, and e-print sites, in addition to the formal peer-reviewed journals. Some publishers permit this, even though copyright has been transferred to them, but others do not. In most cases, publishers ask scientists to transfer their copyright, and scientists are accus- tomed to make such transfers and sign those papers. How can authors get out of this quandary? There are two ways of doing this. A good way is for authors to sign a copyright transfer that also permits them to redistribute their own work. The advantage of this to authors is that it keeps them out of downstream copyright management problems. An even better way, perhaps, is for the author to retain copyright, while licensing the publisher to deploy the work in all the ways that the publisher needs for effective publication and dissemination. In this case, the author will have continued responsibility for managing his or her copyrights, but will also have broad flexibility as owner of the work. ECONOMIC AND NON-ECONOMIC REWARDS TO AUTHORS: THE SOCIAL SCIENCE RESEARCH NETWORK EXAMPLE3 The Social Science Research Network (SSRN) was not founded to make profits, but as a way to change or to make efficient the distribution of work in the social sciences. The SSRN posts on its Web site4 abstracts of full-text, nonrefereed working papers, as well as full-text, refereed articles from journals of established publishers who want to have access to the community that has been created around the Web site. The SSRN has created some measures of popularity. Although it does not referee anything, SSRN's rules are that it will post material that is part of the worldwide scientific discourse in the field for which it is intended. For each field and each journal, SSRN creates "top 10" lists, based on use. The top paper has had 30,257 downloads. Posting articles electronically results in an unbelievable amount of attention for papers, at least compared with normal usage of a printed journal. 3This section is based on the presentation by Michael Jensen, managing director of the Organizational Strategy Practice at the Monitor Company, and Jesse Isidor Straus Professor of Business Administration emeritus at Harvard Business School. 4For additional information on SSRN, see its Web site at http://www.ssrn.com/.
46 ELECTRONIC PUBLISHING Every author in the system has an author page. Wherever the author's name shows up on the SSRN Web site, it is hyperlinked to a stable URL that provides full contact information for the author. The author page also provides a list of all the author's papers on the SSRN site, and these papers are hyperlinked and available for downloading. The author page reports the total number of downloads from all of the author's documents, the articles' ranks, and the downloads for each one of them. The great value of SSRN in developing those top 10 lists is that it has devised an infinite number of carefully gauged categories. Almost every SSRN author at one point in his or her career is a "top 10" author. That author receives congratulatory e-mail from the SSRN editors, even for an article in a narrowly defined category. It can be very gratifying. Authors can look at their Web page for the number of downloads of an article in any given week. That kind of feedback is one of the reasons that the SSRN gets a high level of participation, once authors know about it. Even though SSRN does not offer the kind of prestige credentialing that is provided by peer review, there is a certain amount of validation from it. ISSUES RAISED IN THE DISCUSSION Problems Encountered in the Transfers of Copyrights Faculty may not even know who owns the copyright in their univer- sity. If an article is a work made for hire, then the author may in fact be selling the Brooklyn Bridge when signing the publishing contract. How- ever, most universities have written copyright policies and require their faculty to sign a special agreement, or the faculty member's employment agreement incorporates the copyright policy by reference. If the university does not assert copyright or grants back the copyright in traditional aca- demic scholarship to the professors, that, of course, transfers the copyright to the professors, and then the professors have something to give to the publishers. It is true, however, that the ambiguity about the actual status of faculty writing potentially affects a lot of publishing contracts as well. Problems with the University Work-for-Hire Approach to Academic Publications Several more issues may be highlighted with regard to academic work for hire. Many academics move from one institution to another. In that
LEGAL ISSUES 47 case, which institution owns the copyright? Also, the principle of academic freedom suggests that the professor creates concepts, develops them inde- pendently, and the work is not done at the behest of the university. All the university really requires is that the professor be productive, so how can the university claim copyright? Burdens for Small Publishers in Developing Countries from Licensing and Restricting Access The publishers associated with Bioline International are all typically very small, nonprofit scholarly journals from developing countries. Their major objective is making their materials visible, and by electronic means they hope to accomplish that goal. Another obstacle has been getting their journals into libraries. Big li- braries have an advantage because they have the staff to negotiate a license. Also, the licensing process favors big publishers, who have sales and legal staff to handle the negotiations and contracts. Bioline International has a permanent staff of one and a half, so they do not have the know-how or the time to negotiate with libraries or to work out a system to get their material to the right outlets. For small publishers with only several hundred members and very lim- ited distribution, open access is the only way to go. The goal of the not-for- profit publisher is to fulfill the mission of the organization, that is, to make available the information from research, rather than to make a profit. There should be other ways to recover costs, rather than to get stuck in the sub- scription model as a way to pay for publication. A related lesson is that to control access, small publishers will spend more money than they are able to recoup from their subscriptions. Bioline International needs to measure return on investment in publication in terms of the readership and the impact, rather than the revenue that it can generate. It hopes to convince funding agencies that support these journals that they are spending their money in a useful way.
