Serials – Vol.16,no.3, November 2003 Elizabeth Gadd IPR issues facing

IPR issues facing open access

Based on a paper given at the UKSG seminar ‘The Open Archives Initiative:application and exploitation’, London,14 May 2003

This article reports on some of the findings of the UK JISC-funded RoMEO Project (Rights MEtadata for Open archiving) with regard to the copyright issues faced by academic authors wishing to self- archive their research papers. It concludes that much depends on the rights distribution chain between university,academic and publisher, and that a redistribution of rights amongst the various stakeholders is required. ELIZABETH GADD Project RoMEO

Introduction

The UK JISC-funded RoMEO Project is 5. Academic self-archives the investigating the Intellectual Property Rights (IPR) 6. Repository (Data Provider) creates metadata issues related to the ‘self-archiving’ of research 7. Service Provider harvests metadata papers by academics and the subsequent disclosure 8. End-user accesses the paper. and harvesting of metadata about those research Unfortunately, each stage raises IPR questions. papers using the Open Archives Initiative’s Due to space constraints, the written version of Protocol for Metadata Harvesting (OAI-PMH). this paper will only cover the issues faced at stages During the first phase of the project we performed 1-5. To read more about stages 6-8, please see online questionnaire surveys of four key RoMEO Studies 5: the IPR issues faced by Data stakeholder groups: academic authors, journal and Service Providers 1. publishers, OAI Data Providers and Service Providers. We have also performed a very Stage 1 – Academic writes a paper interesting analysis of 80 journal publishers’ author copyright agreements. The principle outcomes of The first question here is: who owns the copyright the project are, firstly, the development of some in that paper? Arguably , under law it is the simple rights metadata by which academics might employer, however, by custom and practice it is protect their research papers in an open access usually the academic 2. The second question is: environment, and secondly, a means of protecting Does the academic know who owns the rights? the rights in all that freely available metadata that Our survey showed that 61% of authors thought may soon be available. that they owned the rights in research papers. Similarly, an ALPSP survey in 2002 3 showed that The self-archiving process 79% of authors thought they should retain copyright. Of course, the copyright ownership Asimplified model of the self-archiving process issue is complicated if there is more than one consists of eight main stages: author and if academics include third-party 1. Academic writes a paper material in their papers. Half our respondents said 2. Academic self-archives the (e.g. on an that between 71-100% of their papers were multi- institutional repository) authored, meaning they would all need to agree 3. Academic sends to a publisher whether to self-archive, when and where. One- 4. Publisher referees and accepts quarter of respondents included third-party

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materials in their paper, meaning the third-parties Stage 4 – the publisher referees and accepts would have to agree to the self-archiving in the paper addition to the formal journal publication. Once the publisher has accepted the paper, will they Stage 2 – the academic self-archives the ask for copyright assignment – or an exclusive preprint licence – or a non-exclusive licence? Our analysis showed that 90% of agreements asked for copyright In most disciplines there is no preprint culture, but assignment, 6% required exclusive licences, and 4% for the sake of this paper we will assume that there non-exclusive licences. However, we found that is. The questions here relate to how that preprint exclusive licences were often equally as restrictive will be protected in an open-access environment. as copyright assignment. Thus, if I give you my coat Copyright law still applies to open-access works, – you have my coat and I don’t. If I license you my but the law only allows limited use by third- coat, on an exclusive, perpetual basis, the effect is parties. Of more interest is how academics actually the same: you have my coat and I don’t. This is want their work to be protected. Our author something for authors to be aware of. survey showed that the majority of academics are The time of copyright assignment is also happy for their work to be displayed, printed, important to the self-archiving process. If you saved, given away and excerpted from, as long as don’t have to assign copyright until after the work they are attributed as the author and all copies are has been refereed, an author could self-archive the exact replicas of the original. That is, far more refereed version before assigning copyright, and liberally than copyright law or publisher e-journal not break any laws. (The publisher could then licences allow 4. refuse to publish it, but depending on the publication the risks vary). However, 69% of Stage 3 – the academic sends the paper to agreements required copyright assignment prior the publisher to the paper being refereed, meaning only the preprint could be legally posted in this way. The question here is: Will the publisher see self- Worryingly though, in 15% of these cases, archiving as ‘prior publication’ (the so-called copyright would not revert to the author if the Ingelfinger rule 5 & 6,) and refuse to even consider paper was rejected, meaning those papers the paper? Seventy-five per cent of the copyright theoretically could never be published elsewhere. agreements we analysed asked the author to So, what happens if authors don’t own the warrant that the work had not been ‘previously copyright in their journal articles? There are two published’. However, only two explicitly stated scenarios where this might be the case. Firstly, if that self-archiving was considered prior the employer owns copyright, and secondly, if a publication. It might be assumed that the rest that government owns copyright. Interestingly, 57.5% prohibited self-archiving also held the same view, of agreements acknowledged that the US however, there were some publishers that Government may own copyright. However, US specified ‘no prior publication’ but allowed self- Government-owned works are by definition in the archiving. public domain. This illustrates that many It all comes down to your definition of publishers can and do cope with a parallel ‘publication’. To academics, it means formal publication model where a work may both be in publication in a recognised peer-reviewed vehicle. the public domain and also published in a peer- However, in most debates publishers have reviewed vehicle. adopted a broader, dictionary definition of Assuming it is down to the individual academic ‘publication’, such as, ‘the act or an instance of to assign copyright, how will they respond to that? making information public’. I would suggest that Our author survey showed that although 90% most academics do not see self-archiving as an assigned copyright, 49% did so reluctantly. Over alternative to peer-reviewed publication. Indeed, I half of the remaining 10% signed ‘exclusive licence like to make the distinction that self-archiving agreements’ instead, which may not be a good sign. provides communication, whilst peer-reviewed The next question is: What does the academic journals offer publication. get in return for copyright assignment in terms of

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any rights to use their own work? It was outcomes of the RoMEO Project will contribute to concerning that 28.5% of agreements did not grant these discussions. authors the right to use their work in any way Aseries of six studies based on the project’s whatsoever. Of course, the right in which the work, as well as other project outputs including a RoMEO Project was most interested was the right Directory of Journal Publisher’s self-archiving to self-archive. 42.5% of agreements (representing policies, are all available from the project’s web 49.1% of journal titles covered by the survey) site 7. allowed academics to self-archive their works. However, there were no standard conditions References under which self-archiving could take place. For example, there was also no real consensus as to 1. Gadd, E., Oppenheim, C., and Probets, S., RoMEO whether the preprint or postprint (or both) could Studies 5: The IPR issues facing OAI Data and be posted. This makes life very difficult for authors Service Providers. Submitted to Journal of wanting to self-archive and for repositori es Information Law and Technology , 2003. wanting to facilitate it. 2. Gadd, E., Oppenheim, C., and Probets, S., RoMEO Studies 1: The impact of copyright ownership on Stage 5 – the academic then self-archives the academic author self-archiving. Journal of postprint Documentation, Vol. 59, no.3, pp 243-277, 2003. 3. Swan, A., and Brown, S., Authors and electronic If the publisher does allow self-archiving of the : the ALPSP research study on authors’and postprint, is the author allowed to use the readers’views of electronic research communication , publisher PDF? Only one publisher in our analysis 2002, Worthing, ALPSP. explicitly stated that they would allow the self- 4. Gadd, E., Oppenheim, C., and Probets, S., RoMEO archiving of the PDF. However, the author had to purchase it from the publisher in order to do so. Studies 2: How academics want to protect their open-access research papers, Journal of Information Conclusions Vol.29, no.5. [2003; In Press]. 5. Relman, A. S., The Ingelfinger Rule, New England The self-archiving process clearly raises a number Journal of Medicine , Vol.305, pp 824-826, 1 Oct. 1981. of IPR questions, and much depends on the rights 6. Angell, M.,and Kassirer, J.P., The Ingelfinger rule distribution chain between university, academic revisited, New England Journal of Medicine Vol.325, and publisher. This issue has been discussed in pp 1371-1373, 7 Nov. 1991. detail in RoMEO Studies 1: The impact of 7. Project RoMEO: copyright assignment on academic author self- http://www.lboro.ac.uk/departments/ls/ 2 archiving . However, it seems clear that a disresearch/romeo/index.html redistribution of rights amongst the various stakeholders is required. Firstly, institutional repositories need the right at the outset to archive employees’ work – rather than requiring Elizabeth Gadd academics to license them back the right to do so. Research Associate and Editor, Authors, meanwhile, want to be able to publish Library and Information Research News where they like, and to be able to re-use their own Department of Information Science work how they like, and to be able to specify how Loughborough University others may use their work. Publishers also need Loughborough,Leicestershire LE11 3TU the right to publish the definitive version of the Tel:+44 (0)1509 228053 work, and a means of generating income from the E-mail:[email protected] value they do add to the process. We hope the

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