August 2006
Academic Assembly Endorses Proposed Scholarly Work Copyrights Policy
Over the last few years, sharp increases in prices charged for scholarly journals have exacerbated what many in academia believe to be a dysfunctional and steadily deteriorating model of scholarly communication. In May, the Academic Assembly took a major step in responding to this growing crisis by endorsing the Senate Special Committee on Scholarly Communications’ (SCSC) Scholarly Work Copyright Rights Policy. The policy would establish a mechanism for faculty members to routinely grant a license to the Regents to make new work published in scholarly journals and conference proceedings publicly accessible in an on-line open access repository. The Assembly also asked President Dynes to appoint a joint Senate/Administrative work group to refine the copyright policy and prepare it for a full Senate and Administrative review.
This policy change is key element in the Senate’s wider efforts to inform and engage faculty members and other stakeholders in the scholarly publication arena. To address faculty questions and misperceptions that have arisen, the SCSC has prepared answers to some Frequently Asked Questions about the copyright policy. Faculty members are also encouraged to read the SCSC’s companion white papers, which provide in-depth analyses of issues relating to copyright, journal and monograph publishing, scholarly societies, and the evaluation of publications in academic personnel processes.
The Rationale for the Policy
In 2004, UC negotiations with Elsevier, a major commercial publisher of scholarly journals, broke down over sustainable journal subscription rates, and access to Elsevier journals was threatened. In the end however, Senate resolutions and public statements by faculty persuaded Elsevier to reduce its demands. This crisis placed a spotlight on a system that encourages academics, who write the journal articles, to give up ownership of their work to publishers, who then sell it back to university libraries at a profit. The Academic Council established the SCSC to work on a long term solution to the crisis. Led by former Academic Senate Chair Lawrence Pitts, the SCSC took on the challenge of comprehensively addressing scholarly communication issues, especially faculty copyright and access to new scholarship. Drawing heavily upon one of SCSC’s five companion white papers, The Case of Scholar’s Management of their Copyright, the copyright policy proposal asserts the right of UC faculty to manage their own copyright to ensure the widest dissemination of their work. The policy recognizes and takes advantage of the fact that copyright is a bundle of rights that do not need to be transferred completely to the publisher. It also exploits the development and growth of new technologies and associated open access repositories, such as the Physics’ community’s arXiv, NIH’s PubMed Central, and UC’s own eScholarship Repository.
SCSC believes that placing new UC-produced scholarship in an open-access repository will help alleviate the problem of access, which has become more pronounced over the past few years. The open-access repository would give scholars, both inside and outside the UC academic community, unrestricted access to each others’ work. It will also put pressure on many publishers to liberalize their copyright policies, which sometimes place severe limits on the authors’ use of material (such as reuse, distribution, and use in a derivative work). It is the hope of the SCSC that UC’s considerable size (and the large body of new scholarship that it produces every year) will exert significant influence on commercial publishers’ business practices.
The policy also protects those authors who wish to publish in journals that insist upon a complete transfer of copyright by allowing the faculty member to essentially “opt out of this requirement for any specific work or invoke a specified delay before such work appears in an open-access repository.” The opt-out clause is also important for junior faculty, who, when facing a tenure decision, may need to publish in a journal that requires transfer of copyright.
Many publishers will welcome this change in policy. Indeed, statistics from SHERPA/ROMEO, which maintains a database of journals' and publishers' copyright agreements from 155 publishers, show that 78% of the publishers within its database already allow authors to place their work in open-access repositories. One such example is the Nature Publishing Group, which publishes the prestigious journal Nature. However, other scholarly journals are not so liberal. Taylor and Francis, which publishes over one thousand journal titles in science and social science, still requires copyright transfer.
Policy in Practice
If enacted, the Scholarly Work Copyright Rights Policy would not give UC the authority to negotiate with publishers on behalf of its faculty members. It mandates only that UC faculty “shall routinely grant to The Regents of the University of California a limited, irrevocable, perpetual, worldwide, non-exclusive license to place in a non-commercial open-access online repository.” The non-exclusive nature of this license is important. It would not transfer the copyright to UC, but instead allow for simultaneous publication with the academic journal of the faculty member’s choosing. As such, and without ownership, UC would not have an institutional interest in the scholarship contained in the open-access on-line repository. Therefore, UC, and its Office of General Counsel, could not intervene in matters that it does not have an institutional stake in. Another concern is that the policy would give the Regents control over scholarly work produced by UC scholars. Since the Regents would only have a specific non-exclusive right to make a copy of the scholarship available in an open-access repository, they could not commercially exploit the work. The simple intent of this policy is to facilitate wide distribution, long-term management, and preservation of UC research in journal articles and conference proceedings.
Some faculty members already post their research in discipline-specific open access repositories, and others commonly place their work on departmental or personal web sites . This policy does not prohibit either of these practices. In fact, utilizing multiple open access repositories will only further increase the impact of the scholar’s work. Indeed, UC’s eScholarship repository is already pursuing ways to minimize faculty effort by requiring faculty members to only deposit the article one time, as well as maximizing the access to the scholarly content itself.
Some readers will note the omission of monographs and books from the policy. In drafting the language, SCSC members agreed that the market for monographs and books is significantly different than the market for journal articles, which warrants such an omission. While the SCSC comments on the problems in monograph publishing in its white paper, “The Case of Scholarly Book Publishing”, scholarly monographs are not addressed as part of this policy.
Management of Copyright
Effective management of copyright is critical in order to maximize scholarly communication within the academic community. The afore-mentioned dysfunctions of scholarly communication can be partially addressed via a proactive approach to managing faculty intellectual property through copyright provisions in publication agreements. While the Scholarly Work Copyright Rights Policy may alleviate some problems of access and place pressure on some commercial publishers to change their practices, it does not replace the need for the effective management of copyright on the part of faculty members. Mary MacDonald, University Counsel within the UC Office of the General Counsel, notes that since UC does not have the authority to manage faculty copyright, the onus of copyright management and negotiation is on the faculty members themselves. UC policy and academic tradition confirms that, as producers of original scholarship, faculty members initially own their work, and possess the original copyright. It is only when they transfer their copyright, and the specific associated use rights, to a publisher that they lose control of their scholarship.
As noted above, the term ‘copyright’ refers to a bundle of exclusive rights. For most faculty members, these rights include using the work in the faculty member’s teaching or research, distributing the work for educational or non-profit use, or creating a derivative work from it. . A derivative work is one that includes a prior existing (and presumably related) work, either in its entirety or just a portion of it. For example, a faculty member who writes a research article for an academic journal may want to include that work in a subsequent monograph or edited volume. Such a work would be called a derivative work.
Given this bundle of rights, it is critical not to transfer the rights entirely, but instead retain the copyright and grant an exclusive license to the publisher for first commercial publication. In the case of the Scholarly Work Copyright Rights Policy, the faculty member grants the right to the University to deposit the work in an open-access repository. Therefore, effective management of copyright allows the author to place the work in an open-access repository, while simultaneously publishing it with a commercial publisher. It should also be noted that even in the case of an exclusive license with a publisher, the author must specifically state what he or she intends to do with the work during the time in which the license is in effect (i.e. placing the work in an open-access repository). If these conditions are not explicitly stated, then the publisher may be able to, and often does, ban the author from doing certain things.
However, if the copyright has been transferred to the publisher, it is important to note that the author only loses control of his or her scholarly work, but not the ideas that are behind that work. Mary MacDonald explains, “Copyright protects expression that is fixed in a tangible medium. Copyright infringement does not require that something be identical; it just must be substantially similar. So there is no way that you give up your ideas when you assign copyright. What you are assigning is the copyright in what you authored. You’re not giving up your ideas. So if you were to take the same idea but write something that was substantially different, you would be able to do that.”
Next Steps
The conditions that precipitated the Elsevier crisis of 2004 have not diminished; in fact they have intensified. By and large, publishers continue to increase their subscription rates to academic journals, thereby making it more difficult for university libraries to keep up and decreasing the access to many of these journals for scholars. The Scholarly Work Copyright Rights Policy proposal is a step in the right direction, which will not only begin to alleviate the problem of access, but will also apply pressure to publishers to change some of their copyright practices. Meanwhile, the SCSC will spend its final few months this summer formulating additional faculty and university steps to address both the challenges and the opportunities facing scholarly communication. Many of these steps are suggested by the SCSC white papers.
However, UC-wide policies cannot solve this problem entirely. Individual action is also necessary. Faculty members should take care not to sign away their copyright when negotiating publishing agreements with journal publishers. Whenever possible, faculty members should also insist on the right to place their work in an open-access repository. There is also a key role for the University. UC, through its faculty and partners, can provide the necessary leadership to ensure that the systems and methods of scholarly publishing are adequate to facilitate the University’s research, teaching, and public service missions.
-- Todd Giedt and SCSC
See the SHERPA/ROMEO database of publisher copyright policies at http://www.sherpa.ac.uk/romeo.php, which contains links to most scholarly publisher copyright polices and allows viewing of the range of limits on classroom use, creation of derivative works, etc.
SHERPA is a UK-based organization involved in scholarly communication issues, and investigates issues in the future of scholarly communication. It is developing open-access institutional repositories in a number of research universities. Hosted by the University of Nottingham, it maintains a number of ongoing projects.
Nature requires that authors give the Nature Publishing Group a 'licence to publish', which does not require authors to sign away copyright to their articles. Instead, authors provide an exclusive license and are free to reuse their papers in any of their future published work and on their own website. (http://npg.nature.com/npg/servlet/Content?data=xml/05_home.xml&style=xml/05_home.xsl).
A sample of the Taylor and Francis publication agreement with authors is available at http://www.sciencearena.com/sciencearena/authors/copy1.pdf.
Placing articles on departmental and personal websites has several potential weaknesses. First, without the explicit retention of the right, you may in fact be in violation of the agreement you signed with the publisher. Second, the indexing of well-known institutionally-supported sites is more reliable, ensuring that readers will find your material through Google and other search services (in fact the library and publishing community is working to increase discovery, interoperability, and usage measures for open access repositories). Third, a university-managed repository such as eScholarship has long term preservation commitments built into its mission.
The e-Scholarship repository is working with others to maximize access by seamlessly coordinating the indexing of multiple copies when they exist or by “harvesting” the metadata from multiple repositories to provide a scholarly-focused search service.
The right to display and the right to publicly perform are also protected under copyright law.