Another question that is becoming common is about how to comply with the National Institute of Health Public Access Policy. The answer presented here was to an inquiry about an article accepted for publication in the journal “Nature,” whose policy about compliance is fairly well-publicized and easy to find. The specific steps that an author must taken to be sure they have the rights necessary to authorized deposit (or to be sure the journal will deposit for them) will vary with each publisher; where there is uncertainty about the policy or negotiations required, the answer will be much longer that this one.

Dear Professor _____________,

Congratulations on the paper! The first step in complying with the NIH public access policy is to be sure you retained the right to deposit the article when you signed a publication agreement. If you signed Nature’s usual author’s license, a copy of which is available here — http://www.nature.com/nature/authors/submissions/final/authorlicense .pdf — there will not be any problem. That license allows the author(s) to retain copyright, although it gives Nature an exclusive right to publish, and it specifies that the author can place the article in a funder’s open access database subject to a six-month embargo.

Assuming that this is the license you signed, your next step is to actually deposit the article in PubMed Central. You do this using the NIHMS system; there are instructions and links here — http://publicaccess.nih.gov/submit_process.htm . We are being told by those who have used it that the submission process is fairly easy and straightforward. Nevertheless, if you have any difficulties, just let me know and I or one of the librarians will be glad to come to your office and help you with it.

Once you have submitted the article, along with any supplemental material, all you have to do is wait. NIH will send you, or the principle investigator named on the appropriate grant if that is someone other than you, a final copy of the article as it will appear in PubMed Central for verification. It is important to review the article at that time to be sure everything is correct, just as you would do with the page proofs for the journal, and respond to that e-mail.

At some point in the process you will be asked to verify that you have the right to authorize PMC availability and to tell PMC about any embargo. As I said, if you signed the usual Nature license you do have the right to authorize availability and you should indicate a six month embargo. Even though you should submit your article immediately, it will not appear in the PMC database until six months after publication in Nature, in accordance with your license obligation.

For future reference in any paperwork submitted to the NIH, you will need to obtain the PMC ID number for your article. This helps NIH track compliance with the policy and is now required on renewal applications, progress reports and the like. Again, library staff can help you find this number if you have any difficulty.

I have recently been answering several questions that seem to recur, in one form or another, quite frequently. As an extension to the copyright widgets that were well-received over the winter, therefore, I want to offer somewhat generic versions of these questions, along with my answers. I hope they will be useful to others, and even might spark discussions that will both improve my responses and benefit readers of this blog.

This first question was a version of the very common inquiry about when campus showings of films require either public performance rights or a license. The particular inquiry involved a group of films on a speific theme that were already owned by the University Libraries; the questioner, from one of our interdisciplinary centers, wondered rather generally about the legal requirements for show some of these films to groups.

The starting point is that a copyright owner has the exclusive right to authorize public performances of their works. For most films, the copyright owner will be the production company. A public performance is any performance given to a group other than the “normal circle of a family and its social acquaintances,” so almost all performances on campus (other than in a dorm room) are likely to be considered public.

There is one relevant exception to the general rule that the copyright owner has the sole right to allow or forbid public performances, and there are two general ways in which permission is obtained when that exception does not apply.

First, the exception is for performances “in the course face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction.” This broad exception is what allows the screening of films in classrooms by course instructors all over most college campuses, but there are also many campus screenings to which it does not apply. The language of this exception does not limit the allowed performances only to credit-bearing courses scheduled by the registrar, so there is apparently some leeway here. If a regular student group that meets for a clearly educational purpose wants to view a film, for example, I think that performance is allowable under the exception and does not require permission, especially if there is a faculty advisor for the group or some other clear connection to the institution’s curriculum.

On the other hand, campus showings of a film solely for entertainment (such as college film societies) or to which a general invitation is extended so that people with no connection to a specific educational focus of the institution might attend seem outside the scope of the exception. These sorts of showings have traditionally been based on some form of permission.

One way in which permission is obtained is by renting a copy of the film from an agency that includes a license for public performance in the fee charged. Campus film societies often use such an agency; Swank (http://www.swank.com/) is one that is a common source for campus licenses.

In this case, since the university already has the films, the next question would be whether any of them were sold with public performance rights. Some films purchased by the library do have such rights and some filmmakers only sell their work that way; generally these films cost about 10x more than a film without public performance rights, so price can tell us a lot about whether such rights were obtained (although it is not definitive).

Based on the general tone of the question, it sounds like the performances suggested would require permission, but since extensive detail about the intended audience for the films was not given, only the questioner ultimately will know enough to decide if these are public performances that fall outside the scope of the exception for face-to-face teaching activities.

A publication agreement with a book or journal publisher is a contract between the author and that publisher; it may be either a copyright transfer or a license. The most important point in this regard is that all authors should read any publication agreement before they sign it to determine which way it addresses copyright.

Most publication agreements are transfers of copyright, but most also allow authors to retain certain rights after they have transfered their copyright to the publisher. Authors should look carefully to understand what rights they are keeping, and remain aware that, if not retained, all rights are given to the publisher in a copyright transfer. One important right that authors usually want to retain is the right to use their own work in their teaching, including making copies to distribute to students or to put into coursepacks or online systems. At least as important is the right to use one’s own work in future publications, such as edited collections or proceedings of a conference at which the publication was presented.

The right to use a work in later scholarship brings up another issue — the non-compete clause. Sometimes contracts for book publication will contain a clause saying that the author will not publish something that competes with the book under contract. These clauses can seriously inhibit a scholars right to continue publishing research in the same field. Since most scholars do not want to abandon a whole field of research after one publication, it is important to read agreements carefully to identify and negotiate over any non-compete clauses and to retain rights to use articles in future publications.

Another right that is becoming very important is the author’s right to post her work on a personal web page, in a disciplinary repository or in an institutional repository. Again, many publication agreements are allowing authors to retain this right in some form, but they often restrict what version of the article can be used or when the article can be placed in an open access database. So for this reason also, it is important to read a publication contract carefully.

When a publication agreement is a transfer of copyright, all these rights may be retain, but if they are not specifically mentioned, the author no longer has them. A transfer gives everything to the publisher unless it is explicitly retained. A license, on the other hand, gives only the right of first publication to the publisher, and the author retains all the rights that are not explicitly included in the license grant. Obviously, a license for first publication is the form of publication contract that is most beneficial to the authors, since it gives them maximum flexibility to use their own work after publication has occurred. This kind of contract is not the norm, but some publishers are now willing to accept a license for first publication, so many authors will find that it is at least worth asking.

Creative Commons is an organization that was founded to help authors and creators who are interested in sharing their work avoid the very restrictive rules of copyright, and their subsequent chilling effect on users. The licenses available through Creative Commons allow authors and creators to attach a recognizable legal document to their work, especially but not exclusively web work, that allows users to make broad categories of use of that work without further permission. The most common provisions of a Creative Commons license allow reproduction and distribute of a work as long as the original author of the work is identified and the use is non-commercial. This is called an “attribution, non commercial” license. Creators also have an option to either allow derivative works made from the original as long as the derivatives are also shared under the same terms or to prevent derivative works.

Creative Commons offers a fairly wide range of license options. All of their licenses operate to waive copyright protection in the identified situations, such as for a non-commercial use where the author is identified, while retaining the right to enforce copyright in other circumstances. Thus Creative Commons is very effective for sharing academic work so that other scholars can distribute that work to students or other researchers. If derivative works are included in the license grant, a Creative Commons license also supports the continued development of an idea through collaborative scholarship.

If Creative Commons just supported collaboration and open sharing for education and research, its value would be tremendous. But the ability to require attribution is what really makes Creative Commons licenses so important for academics. Needless to say, since academics seldom are paid for their scholarly work, the credit they receive, and the concrete benefits of promotion, tenure and grant funding that spring from enhanced reputation, make attribution tremendously important. Ironically, our copyright law, as restrictive as it is, does virtually nothing to protect attribution. whereas most countries protect attribution as a “moral right” and also make proper credit an element of a “fair dealing” defense, US law does neither of these things. The ability to require attribution as a condition for sharing and permitting reuse thus makes a Creative Commons license a much more effective instrument for enhancing the values that really matter in the academy then traditional US copyright law.

Often a copyright owner (or the owner of any other kind of right) does not want to give her rights away, but does want to allow some people to use the subject of the rights in some way. This permission to use the subject of an exclusive right without liability is called a license. If I own land, for example, I can allow my neighbor to cross that land every morning to get to his bus stop. This is a simple license; I promise not to prosecute my neighbor for trespass, but I retain all the other rights in the land, include the right to exclude others and even to prosecute my neighbor if he trespasses outside the scope of the license. Since licenses are private contracts, they can be very flexible, allowing all sorts of terms and conditions to be built in.

Lots of intellectual property is now licensed for specific uses rather than sold, and no copyright is transferred or assigned. In these cases, the money paid is not a purchase price but is “consideration” for the license contract, the use is governed by the terms of that contract, and the parties are bound by the scope of the agreement. Licenses can restrict uses that would be permitted under copyright law if the copyrighted material had been sold. For example, a license can explicitly forbid uses that would be considered fair use if the user had bought the work; things like short quotes from the subject material may be forbidden by contract. Also, purchasing a copyrighted work usually gives the buyer the right (called a “first sale” right) to further distribute that copy – resell it, lend it or give it away – while licenses often forbid this subsequent distribution.

But licenses also can help an author share her work in appropriate ways. Some publishers, in fact, will now accept an “exclusive right of first publication” – a licensed right that does not involve transfer of the copyright – as sufficient to publish a journal article (note that exclusive licenses, like copyright transfers, must be in writing). And many academic authors, as well as millions of other creators, are starting to use Creative Commons licenses to permit many uses of their work while still retaining the right to explicitly authorize or forbid those other uses that fall outside the terms of the license. As we shall discuss next, the Creative Commons is often a better way to protect the values important in the academy than reliance on traditional copyright law is.

Copyright, like most other “property” rights, can be sold, inherited through a will, given away or otherwise passed to other people (or corporate bodies). Since copyright is really a bundle of rights – reproduction, distribution, public performance, etc. – it can also be divided up and the different pieces transferred to different people under all kinds of different terms. Thus I can sell my right to reproduce and distribute a song I write to a music publishers, give my right to authorize public performances of that song to my sister (a singer), and will my right to allow translations of the song into other languages to my children.

When I transfer an entire right or my whole copyright (i.e., I keep nothing for myself), that is called an assignment or transfer of the right. Most transfers of copyright must be in writing. In the past, most publication agreements required that an author assign his or her copyright to the publisher; authors rarely retained any of their rights. Today many publication contracts still require a copyright transfer, but they allow authors to retain certain rights like the right to post an article on a personal web page or use it for a conference presentation. Essentially, the publisher who receives the assignment grants these rights back to the author. But increasingly we are seeing another method for sharing the rights in intellectual property being used – the license. As we shall see, a license can be used to make it either much easier or much harder to use a work of intellectual property.

Congress recognized that fair use is hard to apply, since one is only certain that a use was fair after a judge decides that it was. So Congress added a provision to encourage teachers and librarians to use fair use where it reasonably can apply. Section 504(c)(2) of the copyright law, part of the section about remedies for infringement, says that “statutory damages,” which are the largest liability in most infringement cases, must be remitted to $0 if the person found to be infringing is BOTH an employee of a non-profit educational institution acting within the scope of his or her employment AND had a good faith belief that the use they made of the copyrighted material was fair use.

This provision greatly reduces the risk when academics think about fair use, since it eliminates most of the money that can be awarded if it is found that the user was mistaken in their fair use analysis. But it is important to note that the belief that a use is fair must be in good faith, which means it has to be both subjectively honest (I really did believe it was fair use) and objectively reasonable (a reasonable person could have come to the same conclusion). In those circumstances, Congress has created an incentive (by reducing what one has to lose) to make reasonable fair uses of protected material. If after carefully considering the fair use factors (this checklist can help), one reasonably believes the use is fair, it is often possible that the educational value of going forward will outweigh this reduced risk of getting it wrong.

Fair Use is the only exception to the copyright law that applies to all of the rights in the copyright “bundle” — reproduction, distribution, public display, public performance and derivative works. If it applies, fair use can allow otherwise unauthorized uses that involve any or all of these rights. The problem is that it is very hard to predict when fair use will apply.

Fair use was an exception to copyright created by judges in order to maintain an equitable balance between copyright holders rights and the legitimate needs of users. It was incorporated into the new copyright law in 1976 with no intention to change the flexible, factor-based analysis that judges had been using all along. So instead of a set of requirements that have to be met for all the other exceptions to apply, fair use has a set of four non-exclusive factors that judges are to balance. It is not a checklist nor a mathematical equation, but rather considerations to be balanced in order to help judges decide what is fair.

The four fair use factors listed in section 107 are 1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion used, and 4) the effect of the use on the potential market for or value of the original. In addition to these factors, section 107 lists some illustrative examples of activities that might be fair use — “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research.”

Because it is “an equitable rule of reason” applied by judges, and therefore quite uncertain, some people are afraid to apply fair use. Nevertheless, it is an essential tool for higher education and the only copyright exception that is flexible enough to accommodate new uses and new technologies. It is very important, for this reason, that academics continue to consider the four factors and make good faith decisions about fair use whenever appropriate.

Two exceptions, found in section 110(1) & (2) of the Copyright Act, apply specifically to teaching activities. These are both exceptions to one of the exclusive rights held by a copyright owner, the right to authorize public performances of the copyrighted work. Public performances happen all the time in teaching, whenever a poem is read, a play staged or a film screened for students. All of these performances would be considered public, even when confined to a small class of students, under the broad definition in the copyright act. So a specific exception to the public performance right is included as section 110(1), which allows public performances without permission as part of face-to-face teaching activities of a non-profit educational institution, in a classroom “or similar place devoted to instruction.” The only further requirement to benefit from this exception is that the copy of a film or other audio-visual work that is performed must be legally made. Copies that are purchased from a reputable vendor or borrowed from a library, a friend or a video-rental service are all lawfully made.

The other teaching exception in 110 is the TEACH Act, which greatly expanded the opportunity in subsection (2) for performances via distance education. Unlike subsection (1), the TEACH Act is full of specific requirements to enjoy its benefit. Some of these requirements are rather difficult for many institutions to fulfill; the best summary of how to interpret and use the TEACH Act is found in this TEACH Act toolkit from North Carolina State University.

Because these exceptions are so specific and, in the case of the TEACH Act, so difficult to use, many educational activities have to rely on fair use — the broadest exception in US law to the rights of a copyright holder — if they are to proceed without seeking permission.