How Can Scholars Retain Copyright Rights?

Scholars are often exhorted to retain the copyright rights to their journal articles to ensure that they can freely use their own work and to permit others to freely read and use it as well. The question for scholars who are convinced to do so is: "How do I do that?"

The first thing to understand is that copyright is not one right. Rather, it is a bundle of rights that can be individually granted or withheld. The second thing to understand is that rights can either be granted exclusively to one party or nonexclusively to multiple parties.

What are these rights? Here’s what the U.S. Copyright Office says:

• To reproduce the work in copies or phonorecords;

• To prepare derivative works based upon the work;

• To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

• To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;

• To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual
  images of a motion picture or other audiovisual work; and

• In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

A legal document, typically called a copyright transfer agreement, governs the copyright arrangements between you and the publisher and determines what rights you retain and what rights you transfer or grant to the publisher. The publisher may offer a single standard agreement or may have more than one agreement.

Whereas the publisher has had its agreement(s) written by copyright lawyers, you are not likely to be a copyright lawyer. This puts you at a disadvantage in terms or understanding, modifying, or replacing the publisher’s agreement. Therefore, it is very helpful to have documents written by copyright lawyers that you can use to modify or replace the publisher’s agreement with, even if the organization providing such documents does so under a disclaimer that it is not providing "legal advice."

Ordered by increasing level of difficulty in getting publisher acceptance, here are the basic strategies for dealing with copyright transfer agreements:

• If the publisher has multiple agreements, choose the one that has the author assigning and/or granting specific rights to the publisher (e.g., ALA Copyright License Agreement). Don’t choose the agreement where the author assigns, conveys, grants, or transfers all rights, copyright interest, copyright ownership, and/or title exclusively to the publisher (e.g., ALA Copyright Assignment Agreement).
• If the publisher has a single agreement that assigns, conveys, grants, or transfers all rights, copyright interest, copyright ownership, and/or title exclusively to the publisher:
  • Amend it with one of the Science Commons Author Addenda. (See the FAQ for more details.)
    • OpenAccess-Delay 1.0 Addendum: "Reserves the right for the author to post the author’s final
      manuscript version immediately and the published version six months
      after publication."
    • OpenAccess-Publish 1.0 Addendum: "Reserves the right for the author to post the published version immediately upon publication."
    • OpenAccess-CreativeCommons 1.0 Addendum: "Reserves the right for the author to post the published version (for example, as a .pdf file) immediately and to grant others a Creative Commons ‘Attribution NonCommercial‘ license to use the article."
  • Amend it with the SPARC Author’s Addendum, which was written by Michael Carroll of the Villanova University School of Law. The Addendum allows you to retain key rights, but not all rights to your article. See the Author’s Addendum page for more details.
  • Retain copyright ownership and replace the publisher’s agreement with the Science Commons Publication Agreement and Copyright License. In addition to retaining copyright, you will specify which Creative Commons License the article will be under. See Creative Commons Licenses for a description of these licenses.

Of course, other strategies are possible. For example, you could use another type of open content license instead of the Science Commons Publication Agreement and Copyright License. However, you might want to keep it simple to start.

For more information on copyright transfer agreements, see Copyright Resources for Authors and Scholars Have Lost Control of the Process.

For a directory of publisher copyright and self-archiving policies, see Publisher Copyright Policies & Self-Archiving.

By the way, DigitalKoans doesn’t provide legal advice and the author is not a lawyer.