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The Copyright Act gives all authors a set of rights that only they may exercise. These include the right to make copies, to prepare derivative works, to publicly distribute, display and perform the work, and in the case of digital sound recordings, to perform the works over a digital network.
With this short set of rights, you would have near perfect control over your works. So, the law provides some breathing room so the public can benefit from the increased numbers of works that are the goal of the law. To use those works, the public enjoys rights to display their own copies, to lend them or give them away, even to sell them, and to reproduce parts of the works in certain circumstances, even to reproduce the entire work in some cases, as a fair use. For more information about fair use, consult the Fair Use guide.
Your rights go on for your entire lifetime, plus 70 more years.
Your copyright brings the full force of federal law to your side to enforce your rights. The entire judicial system is at your service. For a price. It's really sort of odd that you have these rights whether you want or need them, but that's how it is. Your copyright exists from the moment you create original expression that is fixed in a tangible medium. It's automatic. You needn't register your copyright or even put a notice on your work.
In academe, we usually make our livings in other ways besides selling copies of our creative endeavors. We sometimes have to pay even to get our scholarly papers published. Only rarely do we make royalties from the sales of textbooks. So, really, we don't need quite this robust a set of rights attached to everything we do. We could get by with a much thinner copyright most of the time, one that mainly required that we be acknowledged as the author of our works. That's what matters most to us, typically. But we have the full panoply, whether we need it or not.
Unfortunately, the full panoply prevents many important educational and scholarly uses of our works because our readers believe that they have insufficient rights under fair use to use our works. Here's where we all, as authors, can say precisely what we are willing for them to do without our permission, and what our conditions might be. Creative Commons makes this easy.
There are many aspects to effective management of your copyrights, but this section will focus on two of them: the rights you preserve for yourself when you commercialize your work, and the rights you provide for others when you do not. As your rights as a copyright owner explains, your copyright bundle is pretty bloated. It has put on an awful lot of weight in the last 50 years and, for most academics, comprises considerably more rights than we really need or want, rights that actually can interfere with others' uses of your creative efforts.
We're talking about uses that most people recognize are designed to protect commercial interests, and even for these, the protections have grown far beyond what's needed to provide an incentive for creation or distribution. For example, most books have a productive economic life of about two to seven years, but copyrights go on for approximately 100 years or more! Of course, there are exceptional books that are commercially valuable right up until they enter the public domain, but they constitute a tiny percentage of all works. This mismatch between the functional need for copyright and its depth and breadth has led to the development of remarkable tools that allow authors to trim the copyright of some of its excess girth.
Click on the tabs below to learn the differences in your rights when you commercialize your work and when you don't and a brief introduction into Creative Commons licensing and open access options.
When you commercialize your works by publishing them with for-profit or non-profit publishers, you can reserve the right to publicly archive your work. Nearly all major publishers, commercial and non-profit, now provide the right to publicly archive a copy of your work. Publisher policies are the easiest because they apply to all authors and they don't require that you do anything extra at the time you negotiate your contract. But if your publisher doesn't have a policy, or it doesn't go as far as you would like, you need only ask for the right to publicly archive. If there are any costs involved, your grant funding or institutional sources may provide resources specifically for this purpose. In fact, some funders now require that any paper published from research supported with grant funds be publicly archived as a condition of the award of the grant.
If you archive your article in an agency, discipline, or institutional archive (check with your institution -- it might have services to do this for you), you have ensured that many more people will be able to access it than would have otherwise: researchers in other disciplines who may not have access to the commercial venues where you publish, researchers not associated with wealthy libraries, libraries in rural areas, small towns, and less wealthy countries, teachers and students, and members of the public who more than likely paid taxes that supported your research. For more information about how this wider visibility benefits you, your institution, and the public, check out the Open Access tab in this box.
What about gray literature, things you put online, presentations you make, early drafts of articles, datasets, images you create, video you shoot, software code you produce, course materials you use to teach, music you compose -- the list could go on! The amount of creativity we generate that never gets formally published exceeds by thousands of times the amount we do publish. But the same bloated copyright protects these things, practically forever. And the list of things that no one can do with them, except you, is astounding.
Copyright's bloated bundle gives you the exclusive rights to make copies (any and all copies), to distribute your work (to the public or to even offer it to the public), to display and perform your work publicly (and that includes displaying it on a computer screen), and the right to make derivative works (any work that incorporates your work or is based upon it, such as adaptations) -- for your lifetime plus 70 additional years. So, to exercise any of those rights that belong exclusively to you, everyone else in the world needs to get your permission. We're not talking about objectionable uses here -- we're thinking in terms of downloading a copy, printing it and filing it away somewhere, or in several places, sending it to others in an email, posting it in a course reserve system, attaching it to a presentation or another article, writing a critique of it, or using parts of it to support another argument. Unfortunately, the only authorizations (other than your permission) that the public can rely on are narrowly drawn statutory provisions loaded with conditions, limitations and exclusions (like the TEACH Act), or fair use, which is so vague that most people have no idea what it allows and what it forbids. You have the power to make clear, instantly, what you want to permit, and what you don't want to permit, without anyone having to ask you, ever. In other words, no rights-quagmire.
Think about how you like to use others works and give others the rights you yourself think are reasonable. It's easy to do. Creative Commons enables you to select a license type and associate it with anything you put online, in any form. If anyone can find it online, your Creative Commons license will quickly and easily tell them exactly what freedoms your work comes with, and what your conditions include.
Creative Commons (CC) licenses provide free tools that let authors, scientists, students, and educators easilyl mark their creative work with the freedoms they want it to carry. You can use CC to change your copyright from "all rights reserved" to "some rights reserved." In other words, you can tag it "share" just how this course was.
This work is licensed under a Creative Commons Attribution 4.0 International License.
This is the license from the Copyright Crash Course. It's on the front page, prominently located so that people see it immediately. This license might be different from yours because you can include whatever rights you want to. The Creative Commons website makes that easy. This license has one major feature identified by a symbol; the right of attribution intended to identify Georgia Harper as the Crash Course's author. This is the only right the author retains. All the others are shared with the world: the right to make and distribute copies, to display and perform the work publicly, and to create derivative works.
We only had to copy and paste a snippet of code I got from the Creative Commons website into this document to make the license appear. The snippet does three things: it creates this cool little image, it links the reader directly to the Creative Commons site for more details about the license and it makes this document searchable by the Creative Commons search engines so that people who are looking for materials they can be sure they are free to use can easily find it. Very powerful stuff.
Open access (OA) has come to symbolize the revolution in scholarly publishing, though the revolution goes much deeper and is much wider. Fundamentally, open access means what it says, access to scholarly works in the open -- without paywalls and with a license for reuse. This concept has been around for well over 20 years and had its roots in what became known as the crisis in scholarly publishing - the double-digit inflation in the prices of serials over a decade or so that threatened to completely upend the relationship between books and journals in collection development. At one time many thought moving scholars' research results to freely accessible institutional or disciplinary servers would ultimately bring down the prices of journals, if not eliminate the need for them altogether. This has turned out to be illusory. Publishers have us over a barrel for the most part, and they know it and act accordingly. It is ironic that it's our own content they use to reap their generous profit margins from us, but we're the ones who willingly give over the content and then fork over the money to buy it back. What do we expect normal ordinary for-profit publishers to do? They owe allegiance to their shareholders. Well, enough crying over the spilt milk.
Today, ppen access is gaining traction; there are advances on legal fronts; and business models are evolving to acknowledge the inevitability of OA. It only seems a matter of time before the opportunity will be a reality for every single scholar to have his or her work available freely on the web. But that same work will in many cases still be published in exactly the same journal that the scholar might have published in 20 years ago, though it will have gone through a couple of name changes and be owned by one of the 2 or 3 publishers left in the field. Consolidations have been pro forma. This is not to say that there won't be grand departures from the norm also, new modes of scholarly communication and publication, but I think that we'll have quite traditional publishing with us, though not alone on the stage as it is today, for a long time.
As content stops being king, services are likely to take its place. Publishers will compete for subscription dollars based not on what articles they allow you to make available, but on what services they allow you to offer built on the corpus of freely available materials. It will be interesting to see whether competition in services will be more robust (i.e. affecting prices) than competition in scholarly articles is. That was always a big part of the problem with content as king: articles were not fungible. One journal's content could never substitute for another's. Articles are unique, as are their authors. But services are easier to duplicate, except to the degree they are based on patents, but let's not get off on that tangent.
There are so many sources for information on this topic. If you just want to know the basics, the first stop is SPARC. If you really want to dig into resources, I recommend the Open Access Directory. And, if you'd like more personalized information, your library is probably your best bet - they likely have a librarian or librarians who can talk with you about OA. Many libraries offer services to their institutions' faculty to help them take advantage of options their publishers give them to archive their pre- and post-prints, and to negotiate modifications to their contracts that allow for archiving if the publisher does not allow it by policy. You can determine what most publishers' policies are regarding open access at Sherpa's RoMeo site.
Many funding agencies are now requiring grantees to share the results of their research - both scholarly articles and data. The NIH has required grant recipients to share their articles via PubMed Central since 2008. Since that time, many federal funding agencies have come up with their own data and publication sharing plans. SPARC has a really great comparison tool that looks at funding agency requirements for data. It's quite likely that researchers applying for grants will have some sort of sharing requirement they need to comply with. Librarians on most college campuses are available to assist researchers that have questions about these requirements.
"Negotiate? I don't want to. I'm just going to sign the darn thing and get on with my life."
Perfectly sensible, about 30 years ago. But no more. READ THE CONTRACT. It takes awhile, yes, but this is important. It's a legally enforceable bunch of words that are supposed to document your deal with the publisher (sort of like you'd document your field work, or an experiment). Does it faithfully do that? What is your deal? Can you describe it in plain English (or Spanish, or French, or whatever)? Is there anything about it that seems to run counter to what you expect? What happens if they fail to publish within a year or so? Do you have the right to publicly archive your final refereed version? If it's a book, do the rights revert to you when the book goes out of print? Do they consider posting your early drafts on a website to be prior publication? Does anything bother you? If yes, say so.
I know some people worry that if they object to terms in the contract, the publisher will reject the paper, but that's absolutely absurd. The publisher might not capitulate to every demand, but reject the paper - NO.
More than likely, if you get beyond that myth, you still won't want to bother with the contract because it's not clear that the cost of just signing is high enough to warrant taking the time and effort to read it and deal with it. And again, that was probably a safe calculus 30 years ago. But it isn't anymore. Go on, at least read the thing. At least do that. There can be things in there that you really will regret later on.
It's that easy. You just line through what's there and write what you want instead. You can use the margins if you're reviewing an analog copy, or you can "redline" the document if your are reviewing a copy you can word-process. If it's a locked digital copy (like a locked pdf), just print out a copy and mark on it, digitize your markup and send it back in email. If you encounter a click through license, which is quite common now, email the editor and explain your concerns.
So, what do you put in the contract instead? Just say what you want. Plain language is just as good as legalese. Go ahead, try it. I am confident you'll be pleasantly surprised. I have never had a negotiation disappoint me yet and I *always* negotiate. And I'm prepared to walk away over some things, but I've never had to. Publishers only seem unreasonable on the surface of their contracts (lawyers...). They're really not that bad. At least give it a try.
Many universities give faculty members help with publishing contracts because the rights that faculty preserve through negotiation, for themselves and sometimes for the institution, benefit the public generally.. So check around and see if there is an office on your campus that will help you get a handle on this important job. If not, ask why not? Again, be brave. Let people know what you want.
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