I'm afraid there's an option (d), which is that I did read Professor Oppenheim's post, and I think it misstates the legal situation in both the United States and the United Kingdom when an author assigns the exclusive rights under copyright in the final version of an article. Specifically, the statement that an assignment of rights in the final version of an article leaves the author with rights in the draft, i.e., "This crucial difference means I am free to do anything I like with D, including posting it on an OA repository." I am not aware of any legal authority that would support this understanding of the situation.
I take no pleasure in pointing this out, since Professor Oppenheim has done a lot of good work on behalf of OA. But, it's not helpful to understate the legal consequences of a copyright assignment or the grant of an exclusive license. I realize that Professor Oppenheim did not say that a publisher could do as I suggest, and I apologize for using a common form of argument among attorneys to point out the consequences of one's statement of the law. Let me rephrase to say, if Professor Oppenheim's statement of the law were correct . . . . With respect to Kevin Smith's and Dave Hansen's posts, I think we're all roughly in agreement, but we're deeper in the weeds than we need to be. Dave, this really is about the law and not about contract interpretation because we are talking about the legal consequences of a standard transfer of the exclusive right of reproduction, which is ubiquitous in publication agreements that require either an assignment or an exclusive license. See, for example, the IEEE agreement as an example. http://www.ieee.org/documents/ieeecopyrightform.pdf But, let's assume for a moment that the publication agreement assigns only the exclusive rights in the final version of the article. The fundamental misunderstanding is about what the author has given up. The author initially owns the exclusive rights under copyright in the work of authorship, which is the author's original expression contained in the final article. This means the author has the legal authority to exclude others from making exact copies or copies of the work that are substantially similar to the original. When the author transfers this exclusive right to the publisher, the author now has the legal status of any other member of the public with respect to the final version of the article. [Let's leave aside for the moment any provisions of the contract that may give the author rights to post a draft online.] Assuming that fair use, fair dealing or other user rights do not apply, posting a substantially similar version of the final article online would infringe the publisher's right of reproduction regardless of whether the person posting is the author or any other member of the public and whether the substantially similar version is a prior draft or a variation created after publication. That's what it means to give up your rights under copyright, and that's why the record label was able to make a claim against John Fogerty (referenced in my 2006 post) for allegedly infringing the rights in a song that he had previously written but to which he no longer owned the copyright. It is simply not the law that an author who has transferred the exclusive rights under copyright in the final version of an article still owns some residual rights in a prior draft that would allow the author to post it online if the draft and the final version are substantially similar to each other. And, the courts have defined the zone of substantial similarity to be fairly broad. Even if only half of the draft corresponds word-for-word with the final version, that would be substantially similar and could not be posted. I imagine this thread will continue, but I don't expect to contribute further. Best, Mike Michael W. Carroll Professor of Law and Director, Program on Information Justice and Intellectual Property American University Washington College of Law 4801 Massachusetts Avenue, NW Washington, D.C. 20016 Office: 202.274.4047 Faculty page: http://www.wcl.american.edu/faculty/mcarroll/ Blog: http://carrollogos.blogspot.com Creative Commons: http://creativecommons.org Public Library of Science: http://www.plos.org From: CHARLES OPPENHEIM <c.oppenh...@btinternet.com> Reply-To: "Global Open Access List (Successor of AmSci)" <goal@eprints.org> Date: Thursday, February 6, 2014 4:24 AM To: "goal@eprints.org" <goal@eprints.org> Cc: charlesoppenheim <c.oppenh...@btinternet.com> Subject: [GOAL] A reply to Professor Carroll Professor Carroll has completely misrepresented me. As I made clear in my point 1, no-one can adapt or amend F without the publisher's permission. His misrepresentation must have been as a result of one of three things: (a) Prof Carroll never read my piece; (b) he read it and deliberately misconstrued what I wrote; or (c) he read it and did not understand what I wrote. I was totally clear that the author has rights to D, but cannot do anything with F. I now expect Prof Carroll to apologise for misrepresenting me and to explain which of (a), (b) or (c) was the reason. He also notes the UK IPO statement that infringement covers copying all or a substantial part of a copyright work. I agree, but such copying has to be AFTER F is published. One cannot copy something before it is made! So he is again referring to my case 1, and misrepresenting it. Finally, Prof Caroll claims that most copyright assignments refer to assignment of the article AND MORE. Not in my experience as an author of hundreds of articles, and being in charge of assignments and licences in the 12 years I worked for scholarly publishers. So I further invite Prof Carroll to give me actual examples of such assignment wording. I asked Kevin, but he did not give an adequate reply. (Professor Carroll wrote: On Professor Oppenheim's view, the copyright owner's exclusive right of reproduction would be limited to controlling only verbatim copies. If that were true, I would be free to republish the entire corpus of Elsevier publications if I make only small changes to the articles similar to the differences between a final draft and the final publication. Needless to say, if this were the law, some clever publisher would have done just as I suggest. But, this is not the law in the US or in the UK. So even if the publisher were to be assigned rights only in the final version of an article and most publication agreements are not this limited the scope of those rights would preclude posting of substantially similar versions whether those versions were created before or after the published version is produced. (US law uses the term "substantially similar" whereas UK law asks whether the copyright work has been copied "in substantial part" but it effectively means the same thing in this context. See http://www.ipo.gov.uk/types/copy/c-about/c-economic.htm) Professor Charles Oppenheim _______________________________________________ GOAL mailing list GOAL@eprints.org http://mailman.ecs.soton.ac.uk/mailman/listinfo/goal
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