5.
LEGAL ISSUES IN PRODUCTION, DISSEMINATION, AND USE

INTRODUCTORY COMMENTS

Jane Ginsburg, Columbia Law School

The discussion in this session is divided into three areas: the basics of copyright and ownership of rights; licensing by authors to publishers and from publishers to users; and some of the economic and non-economic rewards to authors from scientific, technical, and medical (STM) publishing.

Before addressing the issues surrounding the grant of copyright from authors to publishers, it is important to review the "upstream" question of whether academic and research authors are initial copyright holders, or whether the institutions that employ them in fact hold the copyrights. The initial position matters for a variety of reasons, which need to be better understood. With regard to rights: What rights does copyright confer on authors (including the right to make available for free), and what rules govern the transfers of rights?

In terms of licensing, what rights can authors realistically give to or withhold from publishers? What are some alternative forms of managing rights, such as broad license to publishers while retaining copyright, and what are the pros and cons? What are the major issues between the publishers and users of STM publications and of various models of access? Institutions generally gain access to electronic information via license. What kinds of access do these licenses offer? How could access be improved? What are the advantages and disadvantages of licensed access models compared with hard copy distribution? What role might the science funding agencies or other organizations play in resolving conflicts in relationships between authors and publishers, or publishers and users?

Finally, what are the current and potential economic and non-economic rewards to STM authors from publication, in both traditional and alternative venues? How else, apart from monetary compensation, can authors share in the value of their work? The Social Science Research Network (SSRN), an online publisher of abstracts and (when authors can provide it) full text for working papers or forthcoming published articles, is used as an example to explore these and other related issues in more detail.

Copyright Basics: Ownership and Rights

To begin this discussion, it is useful to examine three questions about copyright and scientific, technical, and medical publications. First, what rights does copyright establish, in what kinds of works? Second, who owns copyright in scholarly works? That is, does the academic author own the copyright, or does the university that employs her own the copyright? And third, assuming that the academic does own the copyright, what rights does she end up having to give up in order to get published?

Basic Rights Conferred by Copyright Law

With respect to copyright basics, first of all, copyright protects works of authorship, and that is a very broad notion. For example, it includes scientific works of all kinds, including computer software, whatever the medium of expression. Whether it is on paper, on film, or in ones and zeros, if it is a work of authorship, it is protected by the copyright law. It is important to understand, however, that while copyright protects the work, it does not protect the information as such within the work. Copyright does



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Electronic Scientific, Technical, and Medical Journal Publishing and its Implications: Proceedings of a Symposium 5. LEGAL ISSUES IN PRODUCTION, DISSEMINATION, AND USE INTRODUCTORY COMMENTS Jane Ginsburg, Columbia Law School The discussion in this session is divided into three areas: the basics of copyright and ownership of rights; licensing by authors to publishers and from publishers to users; and some of the economic and non-economic rewards to authors from scientific, technical, and medical (STM) publishing. Before addressing the issues surrounding the grant of copyright from authors to publishers, it is important to review the "upstream" question of whether academic and research authors are initial copyright holders, or whether the institutions that employ them in fact hold the copyrights. The initial position matters for a variety of reasons, which need to be better understood. With regard to rights: What rights does copyright confer on authors (including the right to make available for free), and what rules govern the transfers of rights? In terms of licensing, what rights can authors realistically give to or withhold from publishers? What are some alternative forms of managing rights, such as broad license to publishers while retaining copyright, and what are the pros and cons? What are the major issues between the publishers and users of STM publications and of various models of access? Institutions generally gain access to electronic information via license. What kinds of access do these licenses offer? How could access be improved? What are the advantages and disadvantages of licensed access models compared with hard copy distribution? What role might the science funding agencies or other organizations play in resolving conflicts in relationships between authors and publishers, or publishers and users? Finally, what are the current and potential economic and non-economic rewards to STM authors from publication, in both traditional and alternative venues? How else, apart from monetary compensation, can authors share in the value of their work? The Social Science Research Network (SSRN), an online publisher of abstracts and (when authors can provide it) full text for working papers or forthcoming published articles, is used as an example to explore these and other related issues in more detail. Copyright Basics: Ownership and Rights To begin this discussion, it is useful to examine three questions about copyright and scientific, technical, and medical publications. First, what rights does copyright establish, in what kinds of works? Second, who owns copyright in scholarly works? That is, does the academic author own the copyright, or does the university that employs her own the copyright? And third, assuming that the academic does own the copyright, what rights does she end up having to give up in order to get published? Basic Rights Conferred by Copyright Law With respect to copyright basics, first of all, copyright protects works of authorship, and that is a very broad notion. For example, it includes scientific works of all kinds, including computer software, whatever the medium of expression. Whether it is on paper, on film, or in ones and zeros, if it is a work of authorship, it is protected by the copyright law. It is important to understand, however, that while copyright protects the work, it does not protect the information as such within the work. Copyright does

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Electronic Scientific, Technical, and Medical Journal Publishing and its Implications: Proceedings of a Symposium not protect ideas or facts, such as genome sequences. It only protects the article that describes or expresses the results and analysis of that information, but not the information itself. With respect to the exclusive rights that copyright confers on the copyright owner, those include the right to reproduce the work in any medium, including digital; the right to make what the law calls a derivative work, that is, the right to adapt the work, including updating the work or making further works based on the first work; the right to distribute the work in copies, including digital copies; and a right that is becoming of increasing importance on the Internet, the right to publicly display the work. When you see the work on your computer screen that you are viewing from a Web site, that is a public display of the work, and the rights of the copyright owner may be implicated thereby. It may come as a surprise to a lot of people that copyright does not grant a right of attribution in the United States. There is nothing in our copyright law, unlike the copyright laws of many other countries, that gives the author the right to be recognized as the author, that gives the author name credit. This is a great failing of U.S. copyright law. To the extent that authors enjoy this right, they enjoy it either by contract with those who publish their work, or possibly as the result of other laws, but not the copyright law. While the research and academic communities respect a right of attribution in practice, such a general right does not exist under American law. The exclusive rights under copyright also are not absolute. There is the well-known fair-use doctrine, which derogates from the exclusive rights. 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. That makes a lot of sense until one finds out that according to the copyright statute, the employer of a work for hire is considered to be the statutory author. What is a work for hire? For present purposes, a work for hire is one prepared by an employee within the scope of his or her employment. That sounds bad to most academics, since it might follow that everything they write belongs to the university, at least if you apply the statute's terms literally. In fact, there has been a long tradition predating the 1976 Copyright Act under which professors own the copyrights in what they write—their articles, books, lectures, and teaching materials. There is no indication that Congress ever meant to change that tradition in the 1976 Act. It just wrote an all-purpose provision on employee authorship transferring authorial status, as well as all copyright rights, to the employer. The question has not been settled under the current Copyright Act, whether the rule is what the statute says or whether the long-standing practice remains valid. Two appellate judges in the 7th Circuit, which sits in Chicago, have suggested that surely Congress did not intend to disturb this longstanding practice and understanding. At the same time, one has to acknowledge that the two judges who said that are Judges Posner and Easterbrook, both of whom have been very prolific professors, as well as judges, so their statements may not have been devoid of self-interest. As a practical matter, the question of professorial or academic copyright ownership did not even come up, apart from these speculations about the text of the 1976 Act, until relatively recently, probably because most academic copyrights, as opposed to patents, were not worth much. Although universities have had patent ownership policies for a long time, most universities, until recently, have not had any kind of policy on copyright ownership. That has changed in the past few years, in part because of the rising importance of software. Software is protected by copyright, and it is worth something. So, some universities thought that perhaps they should lay claim to software—not only software written by staff, but also software written by professors. Universities traditionally had distinguished between works by administrators or staff on the one hand, which were works for hire, and works by professors, which were not works for hire. Nevertheless, some universities began to lay claim to software produced by their professors. Another thing that changed was the continuing escalation of journal subscription prices. Some universities thought that perhaps if they owned the copyrights, rather than the actual creators owning the copyrights, they could bargain better with the publishers. That was perhaps more speculation than actual practice. Finally, the most recently flurry of copyright ownership policies was precipitated by distance education on the Internet. Before the dot-com bust, a lot of universities began to get stars in their eyes

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Electronic Scientific, Technical, and Medical Journal Publishing and its Implications: Proceedings of a Symposium about the commercial potential of online distance education, and saw this as a potential profit center. They therefore wanted to make sure that the content that was being distributed via online digital distance education would belong to the universities, and not to the teachers. At least, that was their first impulse. The allure of online distance education has diminished since those policies were first being adopted, however, and many universities appear to have backed off from asserting such claims. Table 5-1 presents a selection of copyright ownership policies that were publicly available from major public and private research universities. These are divided first into universities whose default position is that faculty own the copyrights in their works, followed by universities whose default position is that the university owns the copyright in faculty works, most notably on grounds of work for hire. For those researchers who are contemplating moving from one university to another, there could be valuable bargaining information here about faculty ownership or not of their works. What difference does this actually make?

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Electronic Scientific, Technical, and Medical Journal Publishing and its Implications: Proceedings of a Symposium TABLE 5-1 Default University Ownership. Source: Jane Ginsburg   Default Ownership Position: University Ownership Conditions For Faculty Ownership Written Agreements Exceptions to the Conditions for Faculty Ownership Creator Acknowledgment/Right of Withdrawal (When University Owns Copyright) Faculty Role in Subsequent Disposition of University-owned Work Transfer or License Back to Creator Provision for Revenue Sharing University of Arizona University owns work of employees, including faculty. "Employee-excluded" works (traditional publications in academia, artistic works, academic software) owned by creator. Creator responsible for executing documentation to assign ownership and secure protection of property owned by the university. Board retains paid-up, nonexclusive license of "employee-excluded" works for education, research and public service. Board owns IP created by visiting faculty, subject to exceptions on a case by case basis consistent with the policy.     Release if in best interest of university; discretionary license to creator. Release subject to nonexclusive license to U for educational, research, and public service work; minimal royalty; cannot use university resources to improve the invention. University will pay creator a share of net income, (gross revenue minus administrative fee and unreimbursed costs). Percent paid to creator determined by "IP Official" in accordance with university policy. Revenue sharing continues beyond employment. "Individual faculty members are entitled to share in the revenues from the intellectual property they have a hand in creating." Share will vary, depending on faculty member's contribution and costs incurred by university. University of Chicago University owns "the intellectual property the faculty create at the University or with the substantial aid of its facilities or its financial support." Individual faculty enjoy the revenue "until it is substantial," at which point, university and faculty member share. Revenues will generally be too minimal for it to be "appropriate" that the university assert ownership rights.           Emory University University owns all work of "Emory Personnel" related to normal duties (including areas of research/ scholarly expertise) or using Emory support. Emory does not assert rights to "academic or scholarly Copyrightable Works," including "works for hire." Emory personnel must agree in writing to be bound by policy; personnel receiving substantial support must sign specific IP Rights Agreement Form. If "related to Emory Personnel's normal duties…field of research or scholarly expertise;" specifically assigned; or used substantial support.     Can petition for release or assignment of ownership. University retains nonexclusive, royalty-free, perpetual license for research, clinical, and educational purposes. Contributors receive 100% of gross up to $25,000; thereafter revenue is split with department, school/ center, and university generally. Contributor will receive his/ her personal share after departure or death.

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Electronic Scientific, Technical, and Medical Journal Publishing and its Implications: Proceedings of a Symposium University of Minnesota University is sole owner of "all intellectual property created through use of University resources or facilities…" "Regular academic work product," as specifically defined, is an explicit exception and thus owned by the creator. Written agreements required to effect exception to the regular academic work product rule of ownership. University has an IP Policy Acknowledgement form. Regular academic work product assigned in writing to the university; specifically ordered/ commissioned work designated in writing as such.     No express provision in policy for transfer or license, but policy stipulates that nothing should affect right of creator to publish, except for delay as needed for university to secure protection. University will share revenue derived from "academic research or scholarly study," and "other intellectual property" as deemed "appropriate" after consultation with creator's supervisor. No mention of share after creator leaves university. Ohio State University University asserts ownership rights in "Products of University Research." "University Research" excludes works of "artistry, academic instruction, or traditional scholarship." Necessary prior to beginning work on a "specific assignment." Otherwise excluded works created as part of a sponsored program or resulting from a "specific assignment."   If University exercises rights, university will pursue protection and licensing "with the assistance of the…creator." If university does not arrange, within a reasonable time, commercial development, transfer to third party, or dedication of rights to the public, creator may request transfer or waiver. Subject to nontransferable, royalty-free license for university. Creator shares in royalties derived from any "Product of University Research." No explicit mention of rights after employment ends, but policy provides for university share if creator cannot be located within five years, which implies ongoing rights. University of Texas Board may assert ownership in intellectual property of all types. Board "shall not assert ownership" of works by faculty, unless commissioned or hired specifically to create the work. General Counsel "shall prepare and distribute...model agreements" as appropriate for implementation of policy. Creators encouraged to sign an acknowledgment clarifying ownership of works they create.     Creator should have "major role" in publication decision, but discretion rests with university regarding development and commercialization. University may choose not to assert interest; may elect to release after asserting interest, subject to possible recovery of expenses, reserved income rights, or other limitations. No share for commissioned work or work created by employee specifically hired to or required to produce it; for other university-owned work, university "recaptures" costs, then splits remainder with creator. University of Virginia Acknowledgment that work-for-hire gives the university ownership of works by employees. University "cedes" ownership and thus will not assert ownership interest in "copyrightable scholarly and academic works" created by faculty with use of generally available resources. Required when university cedes ownership of a work in which, under the policy, it would otherwise retain an interest (not required for scholarly and academic works). Use of university resources and work generates royalty payments or is of commercial value that can be realized by university marketing. University retains nonexclusive, royalty-free right for noncommercial use of works in which it "cedes" ownership.     University may cede ownership of works in which it otherwise, under the policy, would have retained an interest. Retains a nonexclusive, royalty-free right for noncommercial use. Income is distributed according to guidelines developed by the Vice President for Research and Public Service.

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Electronic Scientific, Technical, and Medical Journal Publishing and its Implications: Proceedings of a Symposium Yale University Begins with work-for-hire premise that works created by faculty in the course of their teaching/ research are university property. Disclaims ownership of works by faculty, staff, postdocs, and students.   Assigned tasks and special circumstances of unusual commitment by university to project (discretionary).       University will share "net income" at its sole discretion, but generally on the same terms as patent policy. University deducts costs for securing and defending copyright, and for licensing or otherwise using the work.

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Electronic Scientific, Technical, and Medical Journal Publishing and its Implications: Proceedings of a Symposium About two-thirds of the universities that were reviewed start out with the position that faculty own the works that they create, subject to a number of fairly typical default-shifting conditions. Not every university has all of them, but most of them show up in one form or another. First of all, if the university has invested substantial resources in the creation of the work over and above resources commonly made available to faculty, then the university will assert ownership in that work. Second, many universities have a category of institutional works, which may border on administrative, or often refer to courses that are uniform throughout the university, such as the Columbia Contemporary Civilization Course, which has been taught and added onto by generations of faculty and is considered really more of a university work product than the work of any individual faculty member or faculty members. Those are also the objects of university assertion of copyright. Third, many universities provide that where the research was sponsored by an outside entity, if a condition of the outside entity is that the university own the copyright, then the university will own the copyright. Fourth, a number of schools will assert copyright ownership if the work qualifies as "technology" or software. This can be troublesome, because most of these categories are not well defined between "traditional" academic work, which belongs to professors, and "technology" which belongs to the university. There is some potential tension in the understanding of what those categories mean. When the default position is that the university owns, there is often a provision that the university will forbear from asserting copyright in traditional faculty works. That leaves open the question: What do we mean by a traditional sort of faculty work? If it is not clear what that technology category means, and if the university's position is default university ownership, it may be that the faculty members are on the short end of that stick. Regardless of who starts out owning the copyright, most policies have some kind of limitation on the exercise of copyright, whether by the faculty member or by the university. The most typical constraint on the 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. On the side of university ownership, if the university owns, 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 commercialize the work without obtaining the reasonable consent of the faculty member in advance. Furthermore, many universities provide that with respect to course materials, even if 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. However, only one university, Columbia, provides that even when the university owns the copyright in the work, it should respond favorably to the creator's request to the university to make the work freely available. In other words, the university in effect renounces its exercise of copyright control over the work that it owns at the behest of the creator of the work. This provision extends not only to faculty creators, but also to staff creators. The provision was added to the Columbia policy largely at the request of the academic computing staff, who do not necessarily hold faculty appointments, but who felt very strongly that what they do should be made freely available for other people to build upon. The university acceded to their request. Other universities may do this as well, but it is not explicitly included in their policies Rights That a Faculty Member Gives Up To Be Published Assuming that the faculty member does own the copyright, what does he or she have to give up in order to get published? Table 5-2 presents the copyright policies for authors from a cross-section of publishers, both the not-for-profit professional societies and for-profit publishers. It is rather interesting that there is not much difference in the terms between the societies and the commercial publishers.

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Electronic Scientific, Technical, and Medical Journal Publishing and its Implications: Proceedings of a Symposium TABLE 5-2 Default Faculty Ownership. Source: Jane Ginsburg   Default Ownership Position: Faculty Ownership Conditions Changing Default (Excepting sponsored projects) Other Limitations on Faculty Copyright Limitations on University Ownership Written Agreements Creator Acknowledgment / Right of Withdrawal (When University Owns Copyright) Faculty Role in Subsequent Disposition of University-owned Work Transfer or License Back to Creator (if Conditions for University Ownership Exist) Provision for Revenue Sharing University of California Scholarly/aesthetic work resulting from "Independent Academic Effort" by a "Designated Academic Appointee" owned by creator. Contracted facilities work; commissioned work; sponsored work (unless otherwise provided); institutional work.     Required for Contracted Facilities Work, commissioned work, sponsored work, and project with © ownership other than as provided by the policy.     Discretionary, subject to third-party agreements and best interest of university. Work may not be further developed with university resources; university is granted free-of-cost, non-exclusive, license for educational/ research purposes. Royalty or income from third-party assignment or license of university-owned copyrights may be shared with creator based on "originator's contribution, University's costs," agreements with sponsors, or other applicable agreements. Columbia University Recognizes faculty ownership of traditional works of authorship created by faculty. Substantial use of or support by university resources; created or commissioned for use by university; work-for-hire (including administrative duties). University may assert copyright in: institutional works; course content / courseware (possible exception); use of university name; software. In licensing work to third parties, creator shall seek to reserve university royalty-free right to use portion of work within university for teaching, research, noncommercial use. If university holds rights, faculty members can use works for noncommercial purposes. Policy constitutes binding understanding; formal agreements as necessary to implement policy. Acknowledgment of creators who make "a substantial creative contribution" (including creators of work-for-hire). Creator of a work owned by the University can request the work be made publicly available. Creator has consultation regarding commercialization. Transfer possible upon university determination that ownership has no commercial value. University retains irrevocable, royalty-free license for noncommercial purposes Revenue shared for works made with substantial use of university resources; sponsored project; courseware. Share on a case by case basis for institutional works and works-for-hire. Share not altered by termination of university affiliation or death. Duke University Personal ownership of intellectual property rights in works of the intellect by their individual creators. Computer programs; databases; extraordinary allowance, grant, or subvention; certain collaborative works. Members of university community enjoy permanent, nonexclusive, royalty-free license to make customary and traditional use of course content.     Moral rights of individual creator "respected to the extent practicable in every case contemplated by this Policy."   Discretionary grant "of licenses or royalties or both…on just and reasonable terms." Royalties granted at university's discretion.

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Electronic Scientific, Technical, and Medical Journal Publishing and its Implications: Proceedings of a Symposium Harvard University Except as qualified, "a member of the University is entitled to ownership of copyright and royalties or other income derived from works." Work created by non-teaching staff (work-for-hire); use of rare university holdings (potentially); substantial university assistance; use of university name or insignia; extensive use of voice or image of students or staff. If work falls into optional exception categories, and creator continues to be owner (excluding work-for-hire), university may share in royalties and enjoys royalty-free or reduced-royalty license for not-for-profit educational activities.   Explicit agreement necessary when there is substantial university involvement (even if agreement is that creator retains copyright).   Introductory principles advocate consultation for creators in the publication, development, modification, or commercialization of university-owned work.   Share does not apply to work-for-hire. For other university-owned works, creator's share continues after individual leaves university. Creators deriving "substantial income" encouraged to continue tradition of making a gift to university. University of Illinois Creators retain ownership to "traditional academic copyrightable works" unless subject to defined exceptions. Creation pursuant to external agreement, as a specific requirement of employment or assigned duty; commissioned work; patentable work. If resources beyond those "customarily provided" are used, creator copyright subject to perpetual, nonexclusive, royalty-free license for use in internal teaching and research.   Acceptance of policy deemed condition of employment. Commissioned work must be prepared under written agreement.     Assignment in case of university abandonment; license upon demonstration by creator of capability to commercialize. Assignment must grant university perpetual, nonexclusive, royalty-free license for internal teaching/research; may be subject to revenue sharing. License subject to conflict of interest review. Creator does not share in revenue from sponsored research agreement or grant, nor is there a share in equity comprised of real or personal property. Other revenue is shared with creator, subject to deductions for "out of pocket payments or obligations" plus a reasonable reserve. Johns Hopkins University "Copyright to, and royalty from, literary or scholarly works" produced as part of "usual teaching, service, and research" belongs to creator. University has "right to obtain title to IP developed as a result of support either directly from or channeled through the University." An appointment itself is not "University support."   Work usually excepted from university ownership but work that is a "specified deliverable" from a university-funded or -sponsored project is owned by university.       Creator shares in "net revenues." Personal share survives termination of affiliation with university and death.  

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Electronic Scientific, Technical, and Medical Journal Publishing and its Implications: Proceedings of a Symposium Massachusetts Institute of Technology Author ownership subject to carved out exceptions. Work-for-hire by operation of copyright law; works created with significant use of MIT funds or facilities. (Policy does not state whether faculty work is generally considered work-for-hire.)     Must sign agreement if participating in sponsored research, MIT-funded research, or "significant use" work.   Subject to university discretion, author may request that work be placed in the public domain. Discretionary license back or "stand aside"; creator must demonstrate ability to commercialize. Royalties to university applicable. Transfer may be terminated if effective dissemination does not occur within three years. Provision for share after deduction of overhead and direct out-of-pocket costs. University of Michigan "All faculty own and control instructional materials and scholarly works, created at their own initiative with usual University resources." Work created with "unusual university resources" or "as a specific requirement of employment." University may use materials created for "ordinary teaching use" and administrative purposes; in licensing to third parties, faculty encouraged to secure permission for university community; should not use works in manner that competes with university's educational activities. Nonexclusive use and distribution rights for noncommercial purposes, continuing after faculty member's departure from university. First refusal to make new versions of university-owned instructional materials (consultation for those who left university). Policy states written agreements "may be necessary" to modify rights or provide greater specificity. Acknowledgment and withdrawal. Right of first refusal on new versions; consultation on reuse and revision of instructional materials for creators who have left university. Departed creator may use work for teaching, research, and noncommercial purposes.     University of North Carolina, Chapel Hill Ownership dependent on category; "traditional" or "non-directed" works are owned by the creator. ("Directed works" are works that are "specifically funded or created at the direction of the university,” whether or not exceptional resources invested.) If exceptional resources are used, university owns copyright. If university is involved in commercializing traditional/nondirected work, assignment required. As a condition of employment, faculty grant university nonexclusive, nontransferable, royalty-free license, unless such will impede scholarly publication.   In case of commercialization by university of creator-owned work, an Assignment Agreement shall specify responsibilities and proceed shares.     Release possible in case of work using exceptional resources, directed work, or sponsored work. Nonexclusive, nontransferable, royalty-free license for university's own education/research; income should be shared with university. Policy states that royalties for copyrighted works are usually a matter between author and publisher; acknowledges that "different treatment" may be necessary for university-owned works but does not specify terms of such treatment. Likely will accord with patent policy for net revenue sharing.

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Electronic Scientific, Technical, and Medical Journal Publishing and its Implications: Proceedings of a Symposium Pennsylvania State University Ownership of "literary, scholarly, and artistic works" rests with creator. (Such works do not include "survey instruments, instructional materials including videotapes, and computer software created on U time.") Works generated within scope of creator's employment (literary, scholarly, and artistic works specifically excluded) or commissioned by university.     All faculty must sign an Intellectual Property Agreement. Policy Manual has a provision on coauthorship of scholarly reports; applies regardless of copyright ownership.   Provided only for patents. Policy provides for sharing after recovery of costs related to prosecution, maintenance, or infringement litigation costs incurred by university. University of Pennsylvania Affirms academic custom of creator ownership in works resulting from research, teaching, and writing. Substantial use of university resources; work-for-hire, defined in policy as prepared at direction of supervisor, pursuant to job description, or administrative duty. In transferring interest to others, author should attempt to secure for university royalty-free right for traditional, customary, or reasonable academic use. University retains non-exclusive, royalty-free license for software and courseware.   University may request assignment in instances of work-for-hire; written agreement necessary for works making "substantial use" of university resources; will attempt to "secure acknowledgement" from authors in sponsored project.     Faculty may petition university to waive ownership of work created with substantial use of university resources. Revenue from sponsored research and work involving substantial use of university resources follows that of patent policy, but with different share percent; creator share continues following employment at university. Princeton University No claim to work produced by faculty through "normal teaching and research efforts." "Substantial resources… designated for the development of intellectual property" and by which faculty member may derive outside income. Software subject to special disclosure requirements with respect to commercial potential. Even with the use of substantial resources, university only considers it has "some equity" and "part" of the income should reimburse university for use of resources.         Policy provides for sharing of "Net Income."

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Electronic Scientific, Technical, and Medical Journal Publishing and its Implications: Proceedings of a Symposium Vanderbilt University Rights in "Literary and Artistic Works" are granted "to faculty, staff, and students who are the authors." Nonscholarly literary and artistic works created with use of university "funds or facilities, or [which] capitalize" on university affiliation. "Technology" (computer programs, designs) created with use of university facilities, or without use of university facilities but within creator's scope of employment.   "Technology" that would otherwise be owned by university but assigned to outside entity by creator or created pursuant to independent research, consistent with university policy. Technology assigned to outside entity or created pursuant to independent research must be disclosed or acknowledged in writing.   Anticipated that creator will participate in licensing, including consultation prior. Affiliated licensing may be given first negotiation. If university does not patent or transfer "technology," creator can request assignment. Must be consistent with existing governmental rights. Net income shared with inventor. Purpose of policy is to aid inventors and creators for small discoveries, while large inventions aid inventor's school proportionately more. If inventor leaves university, inventor's school share increases by 10%. University of Washington University faculty, staff, and students retain all rights in copyrightable materials they create. Commissioned works (developed during regular duties, except scholarly works); "sponsored" works making extensive use of university service centers. Regardless of ownership of work, use of university facilities, supplies, or staff, gives university royalty-free use of work (other than books, etc., available through normal channels).   When necessary for transfer of university-owned or university-sponsored work. Required for commissioned works, for works with uncertain ownership interests prior to beginning, or to vary default status. Required to dedicate author share of revenue of university-sponsored works to school/department. Can request materials be withdrawn from internal use if revisions are not feasible and provided author is still employed by the university. Internal: approval of author required unless waived in written agreement or implied; can request revisions prior to internal use. External: subject to written agreement between university and author.   No share in commissioned works; revenue shared in the case of "University sponsored" works, subject to recovery of costs. University of Wisconsin (policy primarily pertains to instructional materials with brief disclaimer of scholarly copyright; no other policy located). University does not assert ownership in "traditional teaching, research and scholarly activities," though performed as an employee. Where substantial institutional resources support development of instructional materials; work using minimal support subject to agreement. To determine ownership rights in instructional materials developed with minimal university support; also if university will own copyright because of substantial support, assigned duty or work-for-hire. Agreements under the policy should address internal use rights and sharing, which is encouraged. Right to not be presented as work of the author if use is contrary to recommendation of author. Rights re: revision and withdrawal with respect to instructional materials only. Includes consultation, option to assume responsibility for revision; consultation on "other" uses. Author role in external distribution.   Revenue from "external distribution" shared; split based on pre-and post-amortization schedules. Author's share continues regardless of termination from university.  

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Electronic Scientific, Technical, and Medical Journal Publishing and its Implications: Proceedings of a Symposium Typically, the publishers demand a total assignment of copyright from the authors. This is pandemic. For example, the copyright assignment form of the National Academy of Sciences (NAS) states: I, the undersigned, hereby irrevocably grant and assign exclusively to the National Academy of Sciences my rights, including copyright interests, in materials or work that I will contribute to the preparation of the report identified below, and in the report, under all laws, treaties, and conventions throughout the world, in all forms, languages and media, now or hereafter known or developed without limitation. Many of the agreements do, nonetheless, provide for some kind of privilege back to the authors, notably for their own nonprofit, university use in further works or in teaching. Where there is considerable divergence is with respect to electronic rights. Almost all of these journals publish both in print and in electronic form. Depending on the contract, authors will be permitted to post an abstract of the article with a link to the publisher site, or they may be allowed to post a preprint of the article on their own Web page, or on some other preprint site, but they may not post the text as edited by the journal. Another variation permits posting of the article, but only on restricted access sites. So, with respect to what authors can do with their own articles, it is far from open access. Another fairly typical provision, also from the NAS contract, paragraph four, states: In making this assignment, I understand that it is the National Academies' policy to grant permission to me to use materials prepared for this report without fee upon application to the National Academy Press. That means that the author cannot use his or her own material without written permission from the National Academies. One might think these policies of the publishers would create a lot of public opposition by the authors, but they have not. So, why not? Or, at least, why not yet? The simple and completely unlegal answer to that is that professors in practice largely ignore these contractual limitations, and they boldly post full text regardless of what their contract says. A highly unscientific survey of Professor Ginsburg’s colleagues in the sciences at Columbia University suggests that this reflects what may be called the Nathan Detroit model of e-publication: “so sue me, sue me, what can you do to me?” The authors are basically betting that the STM publishers will not actually enforce that contract against them. A number of the preceding speakers have envisioned an evolution away from the production and distribution of copies on the part of publishers and toward value-added services such as peer review, or what Wendy Lougee referred to as the codification of prestige, as well as toward a variety of secondary indexing and searching services. If it is true that the commercial value will no longer attach to the actual content of the work, which may well remain on the academic's Web site or on a preprint server, then Joe Esposito may be correct that copyright will not matter anymore to publishers. Copyright nonetheless does matter to authors. One thing that was not mentioned regarding the university copyright default rules is that there is a significant psychological factor in being the owner of the copyright in your work. The universities that take the work-made-for-hire position—to the extent that their faculty know about it—risk antagonizing those faculty members. There is something very deep-seated, even if one is disposed favorably to open access, to still being considered to be the author and copyright owner of your work. Whether or not it will matter to publishers in the future, it will most likely continue to matter to authors.

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Electronic Scientific, Technical, and Medical Journal Publishing and its Implications: Proceedings of a Symposium LICENSING Ann Okerson, Yale University Licenses are not entirely new, but are a more recent method for distributing STM journals and other digital information. Licensing can and does work, and this presentation will discuss why. At the same time, there are many people in academia and at libraries who have expressed negative views about the licensing of journals. Copyright is a long-established regime that most participants in STM journal publishing view favorably. This is also because copyright law is arrived at through a broad national dialogue, and it takes time for that dialogue and for the resulting law to be completed. Copyright is federal national law, and it tends to be very high in concept, and very low in specifics. It is also hard to change, which is probably a good thing. Licenses or contracts are quite different. They are private, negotiable agreements. They are specific and very tailored, and that specificity can be very reassuring. If you are an elementary school teacher and you like to teach the kids in your class, and you want to know what you can do, a license can help delineate that in very useful ways. Licenses can restrict or expand rights that would be granted by copyright law. In that sense, a license is a neutral document controlled 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. Why Do Publishers Need Licenses If They Have Copyright? People often ask why is it that we cannot just use copyright for the distribution of electronic information resources. Why is it that we are now using licensing as well? The most obvious reason is that there is no artifact to work with in the electronic environment. There is nothing to hold, and there is no object to own. This is a very big factor in library licensing. The electronic distribution environment is very new, and current copyright law does not fully address copyright owners' concerns. Some of those concerns are based on the ease and rapidity of distribution of copyrighted works on digital networks, but there are others. A number of vendors and aggregators have added value to public-domain databases originally produced by government entities and have found customers willing to pay for such enhanced information products. Copyright may not adequately protect such products. Other vendors, aggregators, and publishers have digitized a lot of out-of-print works whose copyright has expired and have added a great deal of functionality and value to those works. Again, because the works they have digitized are in the public domain, copyright law would not really help them in protecting their distributed material. Another reason there is value in licensing is that copyright has been in a state of flux. Even though it may take a long time to change the law, in almost every session of Congress in recent years there has been some copyright or database protection legislation or some other proposed statute concerning rights in digital information. Licenses provide certainty to the parties regarding the specific terms and conditions of the use of the material. Copyright law also cannot address the details of complicated electronic information arrangements anymore than it could in print. Licenses can clarify and make less ambiguous numerous matters where practices are unclear. They consequently encourage dialogue, which may be the most valuable part of the licensing process. Licensing engages the two parties in a conversation about what kind of expectations they have of each other. Over the past few years in the Internet information environment, this has contributed to a great improvement in understanding between librarians and publishers. Finally, licenses generally are able to cross national boundaries successfully. They have enabled progress in the marketplace for electronic information without waiting for copyright or database legislation

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Electronic Scientific, Technical, and Medical Journal Publishing and its Implications: Proceedings of a Symposium to be revised or implemented. In the United States, licenses are governed by state law, not national law. They can be harmonized through the National Conference of Commissioners on Uniform State Laws (NCCUSL), although attempts to do so in this specific area of the law have failed thus far. Major Licensing Issues for Libraries Not all licenses have been fair or negotiable for libraries. In fact, 10 or 15 years ago, the licenses offered to libraries were unacceptable. Some problem areas have been resolved, but others persist. The most difficult areas to reach agreement on have been the terms for interlibrary loans and guaranteeing perpetual access and archiving. The 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 library 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, 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 if libraries move to electronic-only subscriptions, which, contrary to what was said by some previous speakers, they are. In the latter instance, libraries cannot fulfill interlibrary loan requests. The requesting reader may be unable to afford a pay-per-view solution at the price set by the publishers, or, more likely, the pay-per-view option just does not exist. The concern about archiving and perpetual access in licenses is somewhat different from this, but it is nonetheless a great concern. Research libraries have indeed attempted to hold onto their 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 movement 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 provide language for continued access, often in perpetuity, but not all do. Furthermore, the contracts are very weak because of the inability of most publishers 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 discussions and investments by all the stakeholders about archiving responsibilities, costs, and technologies. Meanwhile, as libraries are now canceling paper subscriptions, the official scientific record is at some considerable risk. Licenses That Serve Author Interests Better Scientists clearly want their articles to be widely available. Many scientists 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 accustomed to make such transfers and sign those papers. How can authors get out of this quandary? It is not really so difficult or impossible, and there are two ways of doing this. A good way is to sign a copyright transfer that permits the author to distribute his or her own work. The advantage of this to the author is that it keeps them out of downstream copyright management problems.

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Electronic Scientific, Technical, and Medical Journal Publishing and its Implications: Proceedings of a Symposium The copyright transfer form of the American Physical Society (APS) provides one good model.10 The most important points are that the author has the nonexclusive right to give permission to third parties to re-publish the print version without obtaining permission from the APS. The author also has the right to use all or part of the article on his or her Web home page, or for lecture or classroom purposes. The author also has the right to post and update the article on e-print servers, if certain reasonable conditions are met. An even better way, perhaps, is to maintain copyright, while licensing the publisher to deploy the work in ways that the publisher needs for effective publication and dissemination. In this case, the author will have continued responsibility for managing his or her rights, but will also have broad flexibility as owner of the work.11 ECONOMIC AND NON-ECONOMIC REWARDS TO AUTHORS: THE SOCIAL SCIENCE RESEARCH NETWORK EXAMPLE Michael Jensen, Harvard Business School 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 abstracts to full-text, nonrefereed working papers on its Web site, as well as full-text, refereed articles and journals of established publishers who want to have access to the community that has been created around the Web site. The network provides both Web-based access to this work and e-mail journals, which carry abstracts. The announcement service is very important and highly valued. It is one of the few services for which the SSRN charges, and not very much at that. The copyright policy is very simple. The SSRN does not take copyrights. All it requests is a nonexclusive license to post the electronic versions of the abstracts or working papers on its Web site, and the author can take them down at any time. The network was originally founded in 1993 to publish just abstracts in financial economics. It began to carry full-text working papers in 1997. It outgrew financial economics very quickly and then launched different related ventures, including the Economics Research Network, the Accounting Research Network, the Legal Scholarship Network, and, most recently, the Management Research Network.12 It will probably continue to expand. The SSRN publishes more than 400 e-mail subject-oriented abstracting journals to narrow down the torrent of material to something that is manageable for people. The e-mails show up on each subscriber’s desktop weekly, containing three to five abstracts, with links to the full-text paper, full author contact information, and the ability to communicate with each other. The SSRN charges about $10 per year for the e-mail abstracting journals. Another way the SSRN gets revenues is as a subcontractor to many universities and research institutes that contract out the job of distributing their research. Currently there are 92 institutionally sponsored research paper series, which have the full-text papers. Each of those institutions has its own e-mail abstracting journal, along with the whole associated infrastructure. The network has an increasing number of established publishers that are giving it their work so that they are part of the database, part of the e-mail abstracting service. They sell the full-text downloads, and share the revenues. The SSRN only charges for the downloads if the partner does. The size of the network community currently is about 40,000 subscribers; 31,000 authors; 1,800 partners in publishing (both formal publishers and universities or research institutes); 716 academics worldwide who act as advisory board members on these journals and networks; 137 editors and network directors, most of whom are unpaid; and 34 paid administrative and professional staff. There are about 200 journal publishers with roughly 1,000 journals, for which SSRN has permission to carry abstracts and full-text documents. The nonprofit publishers, which include the 10   The American Physical Society’s copyright transfer form can be found on their Web site at http://forms.aps.org/author/copytrnsfr.pdf/. 11   Several examples of such licenses can be found at www.library.yale.edu/~/license/authorss-licenses.shtml. 12   See the Social Science Research Network home page at: www.ssrn.com.

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Electronic Scientific, Technical, and Medical Journal Publishing and its Implications: Proceedings of a Symposium universities, research institutes, and similar organizations number about 400, with about 400 journals and research paper series. Partners include MIT Press, Yale, UCLA, Stanford, Skadden Arps, National Bureau of Economic Research, Goldman Sachs, and Blackwell. There are approximately 53,900 papers in their database, all with abstracts, and full-text documents for about 33,000 of them. The SSRN gets about 3 million hits and about 120,000 unique users per month on its Web site. The average length of a session on its site is 4.5 minutes, which is well above the norm in the Internet context, which typically averages about a half a minute. There are 190,000 downloads of full-text documents per month now. It has had about 4.3 million downloads to date and about 12.6 million abstract views. The SSRN has created some measures of popularity. Although it does not referee anything, it will put material on the site if it is part of the worldwide scientific discourse in the field for which it is intended. It creates for each field and each journal, “top ten” lists, based on use. The top paper has had 30,257 downloads. This results in an unbelievable amount of attention for papers, at least compared with what you would normally expect to get through a journal. Another top 10 list is for the most popular papers published in one of the network’s abstracting journals in the past 60 days. 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 takes the user to the full contact information for the author. The author page provides a list of all of each author’s papers on the SSRN site, which are hyperlinked and available for downloading. The author page gives the total number of downloads from all of the author’s documents, the articles are ranked, and the downloads for each one are given. In addition to charging small amounts for the abstracting journals, the SSRN charges institutions that want to stop distributing the work themselves and transfer that function to the network. It also carries a professional announcement and job series, for which it charges nominal amounts. In cases where people choose to sell their work through its site, prices range anywhere from $5 per download for many full-text journal articles, to $20 a download for a couple of the publishers, and they share those revenues with us. Although the SSRN is not yet self-financing, is expected that it will eventually cover its cost. DISCUSSION OF ISSUES The Value of SSRN to Authors Jane Ginsburg began the discussion by giving the SSRN a warm endorsement as a SSRN author. She noted that in the field of legal scholarship, it has made a tremendous impact through those abstracting journals, which arrive regularly. You can select what fields you want to know about in recent filings with SSRN, and then click on the full text. More often than not you can get the full text, and not just the abstract. Then there is the author gratification element of SSRN, which is not generally available elsewhere. The brilliance of SSRN in developing those top 10 lists is that it has devised an infinite number of carefully gauged categories so that almost every SSRN author at one point in his or her career is a “top 10” SSRN author. The author then gets a nice e-mail from Michael Jensen conveying congratulations that the article has been selected as one of the top 10 in some category, even if it is an extraordinarily narrowly defined category. It is very gratifying. Authors can look at their Web page and see how many downloads there were of their article in any given week. That is one of the reasons that the SSRN gets a high level of participation once authors know about it. Even though it is not the kind of prestige credentialing that is provided by peer review, there is a certain amount of validation. If your article has been downloaded 30,000 times, it is not just your sisters and cousins who are doing that, so this has some value to it. Martin Blume added that the SSRN looks very much like the e-print server that is used in physics, and also like PubScience, a service that was provided by the Department of Energy until it was forced to be taken down. The APS mirrors the e-print archive and makes extensive use of it too, because authors can submit to that, and they subsequently submit to the society’s home journals.

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Electronic Scientific, Technical, and Medical Journal Publishing and its Implications: Proceedings of a Symposium Authors’ Assignment of Nonexclusive Licenses Michael Jensen noted that it was not clear when he started out that he could make the SSRN work without taking anything other than a nonexclusive license, which people could revoke at any time. In fact, it does work. Indeed, he emphasized that he has never seen a publisher enforce a copyright in any way other than against an author. Whenever he gets a standard copyright assignment form from a publisher, he substitutes “non-exclusive license” for the word "copyright," and sends it back. Nobody has ever refused. Digital media are making a difference, and attempts to maintain monopolies on the scientific literature are going to be very short-lived, perhaps another 10 years. In some areas it is going to be slower, and in others it will be faster, but licenses will be the future. Publishing certainly will not vanish but it will take a somewhat different form. Authors will have more rights. At the same time, publishers have to earn a fair return on their capital, or they cannot stay in business. Ann Okerson agreed that the days of exclusive distribution may be rapidly fading. She recommended as a model the rights form used by the APS and others like it, based on a nonexclusive license. She then read a question from a Webcast participant who asked: If the funding or employing institutions were to insist on retaining copyright of work submitted to STM journals, how would this impact STM publishers' decisions about acceptance, and also the overall economics of their publishing business? For example, the Mayo Clinic has in the past insisted on retaining rights after first publication, and this has had little impact on acceptance of papers originating from Mayo. Martin Blume responded that the liberality of the APS’s copyright form, which was mentioned, gives these rights to institutions and to authors. The society has a reason for insisting on taking copyright, as opposed to leaving it with the authors. Dr. Blume mentioned earlier that the society had put all of its content going back to 1893 online. If it had been taking during those years a license, and if that license had failed to mention the electronic means of distribution and publication, as it almost certainly would have, the society would have had to think quite a long time before going ahead, because it would have had to go to all the authors to collect these rights, at least if one were to believe the lawyers. It is also not known how this will work in the future, for example, whether a license that gives the publisher rights to methods of distribution as yet uninvented is valid. APS has received legal advice that in a number of countries, this may not be a conscionable contract, and the society is a very international journal. Consequently, it would not be able to have the best assurance that it would be able to continue to assemble and distribute an archive in the future. This is the reason the APS asks for assignment of copyright. It does give back to authors all the rights that they would have if they had copyright, except the right to keep the society from doing what it wants to with the publication. It has not accepted a request for a nonexclusive license, and generally authors have understood this policy and complied. Jane Ginsburg noted that if the license states that it extends to new modes of communication, now known or later developed, even though it is a license and not an assignment, that is valid. Even if you have an assignment of copyright, the author can terminate it under certain circumstances. She also noted that for those publishers who have any grant, exclusive or not, executed as of 1978, it can be terminated 35 years after the grant. Even with an assignment, therefore, a publisher does not have watertight protection, particularly for old material. Dr. Blume then continued with the following story. I.I. Rabi, a distinguished professor of physics at Columbia, Nobel laureate, and one-time president of the APS, told an anecdote of taking President Eisenhower around the university. Eisenhower said what a pleasure it was to be able to meet with the employees of Columbia University. Professor Rabi drew himself up and replied, “We are not employees of Columbia University, we are Columbia University.” Accordingly, perhaps the professors at Columbia could keep copyright under this, since they are the university. Another reason the APS wants to hold copyright and have the maximum protection that it can get is that it does not trust the law or lawyers, not because lawyers are dishonest or the law is corrupt, but because there is no certainty about how any future dispute is going to come out. The New York Times v. Tasini case is a perfect instance of this, where an unexpected result came about. In fact, it is one that was detrimental to archiving everything on new media.

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Electronic Scientific, Technical, and Medical Journal Publishing and its Implications: Proceedings of a Symposium Although APS has never taken an author to court to enforce a copyright, it does deal with other publishers. It grants back all of the rights to the authors, but if other publishers are assembling collections of the society’s articles and are going to make money out of it, the society needs to have the copyright to get a piece of the action. With regard to the articles submitted by government employees, the situation is straightforward. Those articles are in the public domain, and APS accepts that. In fact, it could deal much more readily with works put in the public domain than with copyright being held by someone. It would be easier, because the society would then have a greater assurance that it would be able to do what it wished with the article in the future. Nick Cozzarelli added that the policy of PNAS is the same as that of the APS. He went on to note that, as an author, he dislikes receiving requests for reproducing his work. He is delighted when a journal will do it for him, and will be even more delighted in the future when nobody has to ask. However, in the discussion thus far about the pros and cons of maintaining control of the copyright, nobody has brought up the fact that by the author maintaining sole rights, it is more difficult when someone else is trying to reproduce it and has to get permission from the author for it, instead of from the publisher. Legal Issues in New Types of Digital Publications Dan Atkins, of the University of Michigan, noted that subsequent panels at this symposium would focus on the future of the process and the products of publishing. In the future, the nature of the document could be expanded to be a multimedia work, involving computational programs, access to data sets, video, audio, and possibly produced as a composite object by multiple authors in multiple institutions, and so forth. What kind of complications does that present to the existing models of copyright and intellectual property? Jane Ginsburg responded that the work that Professor Atkins described, a multimedia work, would probably be considered an audiovisual work under the copyright statute. The owners of that would be the creators, all of them, if it is not a work made for hire. This is a situation in which it might be useful to have contracts between all the owners before they go ahead with such a collaboration, because the administration of the rights to the work might be a little complicated. The default position in the copyright law is that all joint authors share equally in the value of the work. Any joint author or co-owner of the work can separately grant nonexclusive rights in the work, unless the contract provides otherwise, although they have to get together and agree on the grant of exclusive rights. Then it is a question of appropriate contracting. As a matter of copyright law, however, it does not really pose any greater degree of complexity than making a movie or an audiovisual work with a lot of participants involved. It is largely a question of contracts. Implications of Digital Rights Management (DRM) Technologies for STM Journal Publishing Dan Atkins went on to ask about the DRM technology developments and the laws making it illegal to break the coding schemes that protect intellectual property rights. Do these developments have applicability to the STM realm, creating either additional opportunities or problems? Jane Ginsburg responded that some DRM applications, such as pay-per-view publishable or downloadable could be applied to STM journals. There are technological measures that control access and possibly additional ones that control the copying of the work. If we just look at access control, for example, you might have a subscription deal that allows you to have access for a week. Copyright law prohibits you from breaking the access code, so that you could not keep it forever when you only paid to keep it for a week. Business models are now being developed on variations of how much of the work you get to see, how often, how many times, for how long, and so forth. All of these are built on access control technologies. The premise is that publishers can give people more varieties of access at different price points. This probably does not apply to STM as well as it does to the music business, where maybe you do not want to buy the CD with 12 songs you hate just to get the one song you want. There you can see that the model of accessing just one song with multiple replays could be quite attractive. It has taken the record companies a very long time to acknowledge that people do not want to be tied to the entire CD

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Electronic Scientific, Technical, and Medical Journal Publishing and its Implications: Proceedings of a Symposium anymore. They would like to have just one or two songs, regardless of whether they have it permanently or for some limited time. The package that the record companies have imposed on the music-buying public since the death of singles is now no longer enforceable, thanks to a variety of unlawful enterprises like Napster and Kazaa. Similarly, one might say with respect to journal publishing, that not everybody wants the entire journal issue. Why do you have to buy the entire journal, if all you want is one article? The breaking up of journal issues has already been practiced in the print medium with respect to photocopy rights. The Copyright Clearance Center (CCC) has for years granted licenses for photocopying single journal articles. That translates perfectly well to the digital rights management situation as well. An example of a publisher who enforced copyright in this context, not against an author, but against a user, was American Geophysical Union v. Texaco.13 The American Geophysical Union sued Texaco because it was making systematically a large number of photocopies of works from that society and from 500 other journals, without paying for a license to do that. Texaco bought one subscription, and then circulated the subscription to all of its in-house scientists, who made and kept photocopies. Consequently, the American Geophysical Union, together with other publishers, sued Texaco, requiring the company to take the CCC license instead, and they prevailed. Burdens for Small Publishers from Licensing and Restricting Access Leslie Chan, of Bioline International, said that in many ways his project is the small deal compared to the big deal. Its associated publishers are all typically very small, nonprofit scholarly journals from developing countries. The major obstacle they have is making their materials visible, although by electronic means they are now able to do that. Another obstacle has been getting their journals into libraries. They were advised a couple of years ago to take the licensing route and to negotiate with the libraries, and they quickly discovered that the big libraries have the advantage because they have the staff to negotiate a license. They also found the flip side to be true—that these processes are also set up in favor of the big publishers, because they have sales people and lawyers, people who do nothing but licensing and negotiation. Bioline International has a permanent staff of one and a half, so they just do not have the know-how or the time to negotiate with libraries or to work out a system to get their material into the right places. They are interested therefore in getting advice on how best to work with the library community. Dr. Chan also noted that in the last year or so he realized that for small publishers with only several hundred members and very limited distribution, open access is in fact the only way to go. Not-for-profit publishers need to fulfill their mission to get the information and research out rather than to make a profit. There have to be other ways to recover the costs from other sources and activities, rather than getting stuck in the subscription model as a way to pay for the publication. A related lesson is that by controlling access, small publishers spend more money than they are able to recoup from the subscriptions. He would like to know from the other big publishers when they talk about the costs of IT, how much money they spend on controlling access. Bioline International has 24 journals right now, some from Latin America, India, and Africa, and a couple from Southeast Asia. The number is growing, but the area that is growing the fastest is in fact the open-access journals, because, as they have been documenting in the last year and a half, the benefit of having the readership expand results in a lot more than just readership. It leads, for example, to submissions from authors outside their native countries, because the authors know that when they publish in these journals, which are peer reviewed, they will be read by their colleagues just the same. It is an aggregated database that will be Open Archives Initiative (OAI)-compliant. Bioline International needs to measure the return in terms of the readership and the impact, rather than the revenue that it can generate. It hopes to go back to the funding agencies that support these journals, to convince them that they are spending the money in a good way Martin Blume commented that the APS favors assistance to readers of the society’s publications in developing countries, providing free access to them like many of the other societies. He agrees that for developing countries, in general, open access is the best approach. Moreover, there is an apparent diseconomy of scale between very small journals and very large ones, because the very large ones have all 13   See http://www.arl.org/info/frn/copy/texaco.html

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Electronic Scientific, Technical, and Medical Journal Publishing and its Implications: Proceedings of a Symposium of the apparatus of employment, medical benefits, a human resources group, and so on. The smaller organizations do not have that. One of the discussions that APS has had with a number of journals in developing countries is the possibility of their reprinting articles from the society’s journals that were sent in by authors from their country, so that they can give greater publicity to those authors and also greater publicity to their journals. There are not that many articles that come from the smallest of the journals, but it would be worthwhile helping them with their publications. Problems Encountered in the Transfers of Copyrights Alan Rapoport, of the National Science Foundation, noted that, based on Jane Ginsburg’s presentation, faculty may not even know who owns the copyright in the university. One can see the situation of faculty assigning the copyright to the publishers when they do not even own it. Does that happen often and what are the legal ramifications? Jane Ginsburg responded that 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. One way out of that bind is that a number of universities have their copyright policies in writing (see Table 5-1) and require their faculty to sign a special agreement, or their employment agreement incorporates the copyright policy by reference. If the university does not assert copyright, or grants back the copyright in traditional academic scholarship to the professors, that 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 Gordon Neavill, of Wayne State University, raised some more points in connection with the idea of academic work being done for hire. Many academics move from one institution to another. In that case, which institution owns the copyright? If he is teaching courses at Wayne State that he created earlier at the University of Alabama, it would be hard to see how Wayne State could claim copyright in lectures that originated elsewhere. The concept of academic freedom also suggests that the professor originates the concepts, develops them independently, 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? Jane Ginsburg responded that these are all very good reasons why academic work products should not be considered work made for hire. As she noted earlier, there has not actually been a court decision (with the exception of some inconclusive decisions in the Seventh Circuit Court of Appeals) about whether Congress perhaps unwittingly changed the law. The University of Michigan used to take the position that everything was work for hire, but has recently changed that.