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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
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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.
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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.
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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.
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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.
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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/.
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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
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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.
Representative terms from entire chapter:
interlibrary loan
