Copyright, authors’ rights policy

Copyright, authors’ rights policy

/ Wed, 07/31/2024 - 12:51

Abstract

These guidelines provide a brief overview of basic concepts related to copyright. In addition, best practices in defining and displaying copyright policies for editors and publishers are described and explained.

Main Text

What is copyright or authors’ rights?

Different legal systems around the world use different words and legal provisions for the concept of moral and economic rights that authors have over the works they have created. Despite this variety, there are various basic commonalities that can be identified related to copyright (or authors’ rights) in scholarly publishing. While copyright is regulated by the copyright acts of each country, some international agreements are in place (such as The Berne Convention, or the WIPO Copyright Treaty) that create a minimal common ground allowing for the same procedures to be applied globally.

For publishers and editors in the scholarly publishing domain, it is important to understand the basics of copyright in order to be able to formulate appropriate copyright policies for their publications. These guidelines, however, are general in nature, and cannot account for all individual legal contexts. For all  further clarifications, publishing services are advised to engage with a legal expert in their jurisdiction.

Copyright is a subset of intellectual property rights. It refers to the rights of creators of literary, scholarly, and artistic works. It is important to mention that the copyright only protects the rights over expressions, but not over ideas, procedures, methods or concepts. Another important thing about copyright is that there needs to be no act of registering copyright in order for a work to be protected. The copyright automatically exists from the moment of the creation of the work.

The author has moral and economic rights. Examples of a moral right include the right of attribution, i.e. the right to be acknowledged as the author of a work, and the right to oppose changes to a work that could harm the creator's reputation. Examples of economic rights include the right to reproduce the work in any format, the right to communicate the work to the public (e.g. by making it available online), or the right to translation or adaptation of the work. While economic rights can be (and often are) transferred to others, fully or partially, moral rights are inalienable.

Economic rights are not eternal, they expire (in most legal systems) 70 years after the authors’ death, when the work enters the public domain.

However, since copyright legislation is an effort to balance the interests of copyright holders and the public, there exist some limitations and exceptions to copyright, i.e. situations or purposes for which a copyrighted work can be used without asking for the permission of a copyright holder and without remunerating them. Those limitations and exceptions are typically provided in national laws on copyright, and usually include the use of work for the purposes of quotation, text and data mining for research purposes, for use by print-disabled people, or for other purposes. Such limitations and exceptions, sometimes referred to as “fair use” or “fair dealing” can differ across national regulations. This lack of harmonisation brings complexity and presents a barrier to the (re)use of copyrighted works. Diamond OA journals and publishers should strive to formulate clear policies that remove those uncertainties.

Who is the original copyright holder?

Different legal regimes have different rules for who is viewed as the original copyright holder. In some legal systems, the original copyright holder must always be a natural person (an author/the authors), and cannot be a legal person.

In other legal systems, there are special provisions related to “works for hire” which may apply to scholarly works, for instance by authors employed by academic institutions. This means that while the author(s) will always retain their moral rights to the work created, the economic rights can belong to the employer from the moment the work is created. Even in such situations, most academic institutions usually (informally or explicitly) leave decisions about copyright to the authors who can decide how and where to publish their works and who to transfer their copyright to.

The author can transfer their economic rights or give the exploitation right to others, either as an exclusive or non-exclusive right, or as a right that is unlimited or limited in terms of content, time or space.

Copyright in scholarly publishing

Traditional publishers of closed access journals and books used to require “copyright transfer” or the license to publish that implied the exclusive and unlimited establishment of the right of exploitation of the work. Such copyright transfers were only legally valid if they were established by an explicit (written) copyright agreement.

If there is no written contract, but the author submits the work and agrees to its publication, the publisher acquires only the right to publish, but not the right to further dispose of the author's work. In such cases, the author reserves the right to freely dispose of his work (e.g. the right to approve derivatives or commercial exploitation) and the author has the right to decide on the conditions of use of the work and on the licenses. This is why it is important that there is an agreement between the author and the publisher on granting an open license (typically, one of Creative Commons licenses) in some form, even when there is no written publishing contract (it could as well work as an online submission form). The publisher cannot subsequently grant a CC license to the work without the knowledge and consent of the author.

Although in the absence of a written publishing contract, the authors 'retain the rights' to dispose of their work, it is preferable that this is not just a tacit practice, but that the publisher/journal makes its position on that matter clear and publicly available (in the form of a separate copyright policy or a part of an open access policy).

It is a good practice that all prospective authors have a chance to learn about the copyright policy of each journal they are considering for submissions. 

Good practices for formulating copyright policies

All journals should define their copyright policies and make an explicit statement about the main issue, i.e. whether authors retain copyright or the publisher requires copyright transfer (or an exclusive license to publish). For Diamond OA journals, it is always a good practice not to ask for copyright transfer. 

Additionally, journals should make their position on open licenses clear (as described in the Guidelines on open licensing).

If a publisher publishes several journals, it is preferable, but not necessary, that the copyright policies are aligned across all journals.

There are several places where information on copyright should be expressed:

  1. In the instructions to the authors
  2. On separate pages or sections of a journal / a publisher dedicated to copyright and/or open access
  3. In publishing contracts/agreements if they exist (regardless of what they are called: publication statements, publication permissions, licenses to publish, copyright agreements…)
  4. By registering policies in the database Sherpa Romeo
  5. By recording policies in the Directory of Open Access Journals
  6. In the full text of the works/paper (stating who is the copyright holder)
  7. In the metadata description of the work (indicating who is the copyright holder), although this often depends on the capabilities of the platform

Important:

All the above-mentioned places should express the harmonized views of the journal.

If the journal is available on multiple platforms, the information should be aligned across platforms.

Diamond OA journals should agree that the author(s) retain unlimited rights to exploit their work and decide on the terms of use of their work and that they certainly have the right to reuse their own work.

If a journal uses some other CC licence besides CC BY, it is very important to state who is the copyright holder, so that those who want to request permission for commercial use or adaptations and derivative use know who to contact. Stating that the copyright holders are both the publisher/journal and the authors is unclear and not helpful in such situations.

Alternative options?

The Diamond Open Access Standard (DOAS) strongly recommends authors’ rights retention, but other options are possible as well.

OA journals can claim the exclusive right to exploit the work, or the right to exploit it for some purposes and in some ways (e.g. the right to decide on commercial uses or the right to adaptations).  

DOAJ does not consider this a recommended practice but accepts such journals as well.

In case the publisher has acquired the exclusive right to use the work, they can independently decide on licenses and assign them to the published works. However, in combination with free licenses (CC BY), such practice does not make much sense. Combined with more restrictive CC BY-NC/ND/NC-ND license, this means that the journal decides and approves commercial use and adaptations, and even the authors themselves need to ask permission from the publisher. 

Rights to reuse copyrighted works (Third party copyright)

If other people's works (or their parts) are used in the publication, it is necessary to obtain permission for use. The responsibility for obtaining permission rests with the author, but the journal or publishing service should:

  1. Warn about it in the instructions to the authors (indicate what kind of permission should be obtained: usually non-exclusive, but unlimited)
  2. Ask for a guarantee in the author's statement that permissions have been obtained.
  3. Check whether all sources are properly cited in the article
  4. If necessary, state the terms of use (the third-party work’s license) separately for individual elements in the work

Tips

  • Create clear, concise and precise policies, so that authors don’t feel insecure about their rights.
  • If authors retain copyright, and the publisher acquires only the right to publish, the author reserves the right to freely dispose of their work (e.g. the right to approve derivatives or commercial exploitation) and the author has the right to decide on the conditions of use of the work and on the licenses. This is why it is important that there is an agreement between the author and the publisher on granting an open license.
  • For Diamond OA journals it is always a good practice not to ask for copyright transfer. 
  • Information on copyright should be stated in several places and all given information should be aligned and regularly updated.
  • Journals need to guide authors in obtaining permission for the reuse of third-party copyrighted materials.
  • Journals and publishing providers should ensure that copyright information (including open licenses) are provided in human- and machine-readable form (via metadata).
     

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This article is made available under a Creative Commons Attribution 4.0 International License

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