Guidance on Protecting Faculty Copyrights When Publishing
I. A FEW COPYRIGHT BASICS
What is copyright?
A bundle of legal rights regarding an original work, including: reproduction, distribution, performance, adaptation, use in derivative works, and display. In other words - copyright is the right to CONTROL how the work is used.
How long does copyright protection last?
Generally, for the copyright owner's lifetime PLUS seventy years . . . but that general rule has lots of exceptions for works published during the effective dates of several different copyright laws, so it is best to check with a librarian. You may also consult the following guidance posted by the Cornell Copyright Information Center: https://copyright.cornell.edu/resources/publicdomain.cfm.
What can be protected by copyright?
Original works of authorship fixed in a tangible medium of expression. Not just an idea, but one that has been converted into some tangible form. To be protected by copyright, the material must be an original work and with some degree of creativity. Copyright protects all forms of authored or created works, including literary, artistic, architectural, sculptural, musical, dramatic, etc.
How does a person "copyright" a work?
Copyright is not a verb - it just happens! If you have created a work, it is copyrighted and has copyright protections. No longer does copyright require notice, a copyright symbol, publication, or registration with the U.S. Copyright Office. However, for works published prior to March 1989, some of those conditions may affect the length of your copyright protection.
For more information about the rights and protections associated with copyright, visit: http://web.law.columbia.edu/keep-your-copyrights/copyrights.
Should I register my copyright with the U.S. Copyright Office?
There are some key benefits to doing so:
- Avoids claims of "innocent infringement" by establishing a public record of your copyrighted work
- Required before you can sue in court for copyright infringement
- Provides "on its face" evidence of the validity of your copyright if registered before or within five years of publication
- Provides for statutory damages and attorney's fees if registration is made within three months after publication or before any infringement - avoiding the need to prove actual damages and profits
- Allows you to record the registration with the U.S. Customs Service for protection against importation of infringing copies
Who owns the copyright in a work?
At the time the work is created, the author or creator of the work owns the copyright. If the copyrighted material is a "joint work," each author/creator has an equal interest in the copyright, may use the work without permission of the other, may grant non-exclusive licenses for use of the work, and is accountable to the other for profits. In the case of a "collective work," each author owns a copyright to his or her contributed work, but the creator of collective work owns copyright in the collective.
Who owns the copyright to work created in the scope of employment?
Generally, work created by an employee in the scope of his or her employment belongs to the EMPLOYER. This typically does NOT apply to faculty under university intellectual property policies; rather, such policies generally provide that faculty retain ownership in their works absent special circumstances. The employee/creator of the work also may not own the copyright in circumstances where the work is specifically commissioned, IF the parties agree in writing that the work is a work "made for hire."
What are the terms of W&L's Intellectual Property Policy?
The terms of W&L's Intellectual Property Policy state, in part, that "the creator of Intellectual Property shall retain his/her rights, and the University shall not assert ownership rights. However, creators will be expected to grant non-exclusive, royalty-free, perpetual licenses to the University for Intellectual Property that is developed for University courses or curriculum, so that the University's continued use of such material for educational purposes at W&L would not be jeopardized." To read the full policy, visit: http://go.wlu.edu/OGC/IP-Policy.
II. COPYRIGHT MANAGEMENT WHEN SHARING AND PUBLISHING YOUR WORK
What are a Publisher's Rights?
WHATEVER YOU GIVE TO THEM. It's really that simple. Put another way, a publisher has WHATEVER RIGHTS THEY TAKE BY AGREEMENT, unless you negotiate rights or uses you want to maintain as part of that agreement.
What do I need to know about managing my copyrights?
First, understand the difference between "License" and "Transfer of Ownership." There is a BIG difference. A license gives permission to exercise a specific right of the "bundle" in one or more specific ways. Licenses can be exclusive or non-exclusive, with or without royalties, limited in time or perpetual. By contrast, a Transfer of Ownership involves actually giving away ownership of copyrighted work. Both Transfers of Ownership AND Exclusive Licenses MUST be in writing and signed by the owner of the copyright.
As a faculty member, what rights should I keep?
The answer to this question depends on what you want to do with your own work. If, for a few examples, you want to: share your work with students and colleagues; use your work in future scholarship or creative works; present your work at a conference; add your work to W&L's Digital Archive; or post it to your own website, YOU NEED TO PRESERVE THOSE RIGHTS.
What tools are available to help me manage my copyrights?
There are several ways to manage your copyrights.
- Creative Commons
- The Creative Commons organization provides a free and easy to use online system to license the use of your materials for various purposes with attribution.
- Available at: http://creativecommons.org.
- Could be particularly useful for self-published works, course materials, presentations, images, etc.
- Author Addendum
- An Author Addendum may be used as a means of negotiating permitted uses or retained rights in a publishing agreement.
- Open Access Policies
- These may be institutional or provided through funders (such as the National Institutes of Health [NIH] Policy for research funded by NIH).
- For additional information, visit: http://publicaccess.nih.gov.
In what other situations besides book/journal publications should I be mindful of protecting my copyright?
Online presentations, class materials, art databases, TED type talks, etc. Bottom line is: before you send your work out into the world in these and other settings, think about how you should protect your rights.
III. CREATIVE COMMONS LICENSING
How does Creative Commons help me manage my copyright?
Creative Commons works alongside your copyright and allows you to modify the terms of your copyright. A Creative Commons license allows you to give people the right to share, use, and even build upon a work you've created. A Creative Commons license gives you flexibility (for example, you can choose to allow only non-commercial uses) and protects the people who use your work, so they don't have to worry about copyright infringement if they comply with your specific conditions of use. For additional information, visit: http://creativecommons.org/about.
What resources does Creative Commons provide?
Creative Commons license tools give creators of copyright works a simple, standardized way to keep their copyright while allowing certain uses of their work. According to the Creative Commons website, this takes a "some rights reserved" approach to copyright (instead of the traditional "all rights reserved" approach) - which makes creative, educational, and scientific content more compatible with the Internet's potential for use and sharing. For additional information, visit: http://creativecommons.org/choose.
Why should I use a Creative Commons license when sharing my work?
A Creative Commons license is an effective way for creators to clearly communicate their intentions about use of their works, so that users know what may be used without permission and how - and what requires permission. Search engines like CCSearch and CCMixter make it easy to find Creative Commons licensed material. For additional information, visit: http://guides.lib.umich.edu/creativecommons.
How do I apply a Creative Commons license to my work?
After you have chosen the specific Creative Commons license you wish to use, it is simple to apply the license to your work. The license options are the same for all media, but the way to express the license will vary by media and format. See the following examples from the University of Michigan Library site: http://guides.lib.umich.edu/creativecommons.
- Text Document
- On the title page, copyright information page, or some other reasonable location (eg: a footer) place the following text (substituting for your case):
- © YEAR, NAME. Licensed under the Creative Commons <SPECIFC LICENSE> <URL OF LICENSE>
- If you use the license chooser from Creative Commons it provides you with HTML code to put into your webpage (usually within a template or other central location).
- In this case, the license will apply to the writings on the webpage such as blog entries.
- It is recommended to put a roughly 2 second bumper at the beginning or end of the video with the license information (the same as recommended for the Text Document, above) easily readable. The added benefit of using the Creative Commons badges is that they help provide users with quick visual recognition that transcend language differences.
- If you are posting this video online it is also recommended to put the license information around the video as well. For example, in the video description field on YouTube.
- If the audio file is something that would aesthetically allow a 3 second statement of the license at the end (such as a podcast) then simply reading aloud the suggested information from the Text Document example is suggested.
- If the audio file would be harmed from such an addition (such as a normal-length song) then making sure to include the license information in any description of the audio when you post the file online is recommended. Many audio sharing websites allow the user to select the specific Creative Commons license that the file is licensed under.
IV. BOOK AND JOURNAL CONTRACTS AND AUTHOR ADDENDA
How does a book contract affect my copyright?
In a book contract, copyright almost always TRANSFERS to the publisher. Other issues to consider: electronic rights; revised editions; out of print and reversion rights; options for future works; royalties; and promotional and publicity rights.
What language should I avoid when entering a book contract?
Try to avoid language like the following: "By signing, you agree to transfer to us the copyright in the above work, giving us the SOLE and EXCLUSIVE right to reproduce, distribute and broadcast the work ourselves throughout the world in printed, electronic, or any other medium, and to authorize others to do the same. You promise that you will not self-archive or otherwise deposit your article on freely available institutional or other online repositories, UNLESS YOU AGREE TO PAY US A LICENSING FEE."
What language is preferable for protecting my copyright in a book contract?
The following is an example of preferable language for protecting your copyright in a book contract: "We retain copyright of the work we publish. However, you do not give up your right to use your own material. You are not required to seek permission to re-use your own work. You can use your work published by us in another work, or authorize others to make a preprint or final published version of the work available in digital form, including but not limited to a website under your or your institution's control or through digital archives."
How does a journal contract affect my copyright?
Unlike book contracts, journal contracts are much more commonly negotiated. You may either transfer your copyright or license materials for a specific purpose. Also consider the following: the treatment of your electronic rights; the rights you wish to retain; and whether there will be a delay or "embargo" period (particularly for depositing to institutional archives).
Where can I find samples and templates of author addenda for book or journal publishing?
The following links provide samples, templates, and useful information regarding author addenda:
- Committee on Institutional Cooperation (CIC) Author Addendum: www.cic.net/authors. This sample template reserves a non-exclusive right for the author and the author's institution use and provides a short "embargo" for placing in repositories.
- Scholarly Publishing and Academic Resources Coalition (SPARC) Author Addendum: http://sparcopen.org/our-work/author-rights/
- Columbia University Addendum: http://copyright.columbia.edu/copyright/files/2012/03/author-publication-addendum-columbia-open-access-030912.pdf.
V. NIH OPEN ACCESS POLICY
Does the NIH Open Access Policy apply to my work?
The NIH Open Access Policy applies to works that are: peer-reviewed; accepted for publication in a journal on or after April 7, 2008; arise from direct funding (awards and subawards) from NIH grants in Fiscal 2008 or beyond, or direct funding from an NIH contract signed on or after April 7, 2008, or direct funding from the NIH Intramural Program, or an NIH employee. See FAQs: NIH Open Access Policy FAQs: http://publicaccess.nih.gov/faq.htm#778.
What does the NIH Open Access Policy require me to do?
Authors should know that the NIH Open Access Policy does NOT require the author to transfer ownership of work to NIH. But authors need to negotiate publishing agreements to be certain they can comply with NIH policy. Terms that comply with the NIH Open Access Policy, could include, for example: "Journal acknowledges that Author retains the right to provide a copy of the final peer-reviewed manuscript to the NIH upon acceptance for Journal publication, for public archiving in PubMed Central as soon as possible but no later than 12 months after publication by Journal."
Where can I find videos on how to comply with the NIH Public Access Policy?
- A video on the NIH Manuscript Submission System (NIHMS) is available at: https://www.youtube.com/watch?v=NROwOdAieG4.
- A video on using "My NCBI," a website operated by the National Center for Biotechnology Information (NCBI) is available at: https://www.youtube.com/watch?v=ks46w3mNAQE.
- A video on using the "My Bibliography" feature of "My NCBI" is available at: https://www.youtube.com/watch?v=9gApmLHdCSM&feature=relmfu.
- A video on Public Access Compliance with the NCBI is available at: https://www.youtube.com/watch?v=JYODIOD_YYE.
The NIH Open Access Policy applies to me. How and when do I comply?
According to the NIH website, an author should:
- Prepare a manuscript and address copyright:
- Before you sign a publication agreement or similar copyright transfer agreement, make sure that the agreement allows the paper to be posted to PubMed Central (PMC) in accordance with the NIH Public Access Policy. Final, peer-reviewed manuscripts must be submitted to the NIH Manuscript Submission System (NIHMS) upon acceptance for publication, and be made publicly available on PMC no later than 12 months after the official date of publication.
- For additional information, visit: http://publicaccess.nih.gov/address-copyright.htm.
- Once accepted for publication, the author should post it to PubMed Central and track it using "My NCBI."
- According to the NIH website, four submission methods are available to ensure that an applicable paper is submitted to PubMed Central (PMC) in compliance with the NIH Public Access Policy. Authors may use whichever method is most appropriate for them and consistent with their publishing agreement. To identify the submission and reporting method for a specific journal, use the submission method identification wizard. For additional information, visit: https://publicaccess.nih.gov/submit_process.htm.
- Authors must report to NIH and include a PMCID in their citations.
- According to the NIH website, this means that anyone submitting an application, proposal or report to the NIH must include the PMC reference number (PMCID) when citing applicable papers that they author or that arise from their NIH-funded research.
- For additional information, visit: http://publicaccess.nih.gov/include-pmcid-citations.htm.
VI. HELPFUL RESOURCES
What campus resources are available for additional questions?
- Alston Cobourn, Digital Scholarship Librarian
- Caroline Osborne, Assistant Dean for Legal Information Services and Professor, Law Library
- Leanne Shank, General Counsel
- Jennifer Kirkland, Associate General Counsel
- Visit the General Counsel website.
Where can I find additional information and guidance on protecting my copyrights?
- Information on copyright ownership and publication agreements from the Columbia University Copyright Advisory Office:
- Information on copyright protection from the Copyright and Digital Scholarship Center at North Carolina State University:
- Information on copyright protection from the non-profit organization, Creative Commons:
- Frequently Asked Questions on Creative Commons from the University of Michigan: