There has been a lot of attention given to the moves by publishing giant Elsevier to enforce its policy regarding authors’ rights to post his or her article on a personal website or in an institutional repository.  Since Elsevier began sending take down notices last fall, first to Academia.edu and then to individual universities, it has become well-known that authors are allowed, under their contracts with Elsevier, to post their “final submitted version,” which refers to the last version of the article, after peer-review, that is sent to the journal, but not the final published version with whatever copy-editing and formatting that the publisher has added.

This is a difficult distinction for faculty authors to understand.  My colleagues and I talk about it all the time with our faculty authors, but they persistently do not see much difference between the two versions, so they sometimes believe that there is little reason to observe the distinction.  Publishers think (or at least say publicly) that they add a lot of value to submitted manuscripts, but a great many authors do not see it that way.

Unfortunately, some of the attention that this new strategy from Elsevier has garnered has made the difficulty of explaining what is going on to faculty authors a little more difficult.  This article from The Economist Called “No Peeking…” is a case in point.  The article correctly suggests that this is going to prove a self-defeating tactic for Elsevier, whose desperation to stem the movement toward open access often leads it into foolish decisions.  The Economist, however,  misstates the copyright law in its article in a way that will unfortunately reenforce a common misconception on campuses.

Here are three sentences from The Economist article that embody the misconception I am concerned about:

Like journalists writing for a newspaper, academics submitting an article to a journal usually sign contracts which transfer copyright to the publisher…. As the University of California, Irvine, which was on the receiving end of some of the takedown notices, points out in advice to its staff, it is usually only the final version of an article, as it appears in a journal, that is covered by publisher’s copyright. There is nothing to stop scientists making earlier versions available.

The problem with the first sentence is that academic authors are really not like journalists.  Many journalists are full-time employees of their newspapers, so that their articles are owned by the newspaper from the start, as works made for hire.  On the other hand, academic authors are not employees of publishers and their writings are not work for hire.  Their rights (as well as those of some free-lance journalist) are entirely governed by the contracts they sign.  The important implication of this is that academic authors have much more control over the rights they surrender and retain than do journalists; faculty members can simply refuse to transfer copyright (because they own it unless and until it is transferred in writing) or they can negotiate the exact terms of publication, transferring or licensing some rights and holding on to others.

The bigger issue in this article, however, is in the second and third sentences quoted above, about how the copyright that is transferred to publishers only “covers” the final version of the article.  This is a common misconception that is both wrong and dangerous.  It is the same misconception that leads some people to believe that if they re-draw an illustration, chart or table from a copyrighted publication, they do not implicate copyright.  But the truth is that a copyright includes any work that is derived from the copyrighted work and is “substantially similar.”  When someone wants to use a figure from a published work, they may well be able to do so under fair use, but redrawing the figure, unless it is redrawn into something quite different (which would undermine the purpose), does not alter the copyright situation.

When we turn to the issue of article versions, the situation is the same.  Each version is a revision of the original, and the copyright is the same for all these derivatives.  When copyright is transferred to a publisher, the rights in the entire set of versions, as derivatives of one another, are included in the transfer.  Authors are not allowed to use their post-prints because the rights in that version are not covered in the transfer; they are allowed to use post-prints only because the right to do so, in specified situations, is licensed back to them as part of the publication agreement.

Once a copyright transfer has been signed, all of the rights that the author may still have are because of specific contractual terms, which are usually contained in the transfer document itself.  In short, these agreements usually give all of the rights under copyright to the publisher and then license back very small, carefully defined slivers of those rights back to the author.  One of those slivers is often, but not always, the right to use a submitted version, or post-print, in carefully limited ways.  For example, many publishers allow posting of the submitted version only on defined websites, usually a personal site or institutional repository.  Often the contracts also allow posting of the submitted version only after some lapse of time.  These restrictions would not make sense or be enforceable IF the author retained some kind of copyright in earlier versions, as The Economist implies.  But they do not; they have only, and exactly, what the contract gives back to them.

One important lesson to be gained from this correction of the language of The Economist article is that publication contracts are extremely important.  They entirely determine what an author can do with his or her own work in the future.  For many academics, signing such agreements is a very bad idea; they should be negotiated, either to make them licenses to publish, which allows the author to retain her copyright, or to be certain that the rights that are licensed back are broad enough and flexible enough to permit the future uses the author wants.  Before the transfer, the author has a good deal of leverage to negotiate these agreements, but afterward she has very little.  So it is vital to pay attention to the agreement itself and not rely on a false sense of security based on a misconception of how copyright works.

Another point to learn from this situation is that the whole idea of article “versions” is artificial.  It has been developed primarily by publishers in order to make a claim that they add substantial value to the final published version, which may or may not be true, depending on the article and the publisher.  Another marketing advantage that publishers get from this fabricated distinction is the ability to claim that they support author rights and reuse of articles to promote better access, while still retaining the ability to slap down authors who use their own articles in ways the publishers have not pre-approved.  As my colleague Will Cross has put it, “This versioning is a creation of publishers to reenforce the sense that they are following the academic “gentleman’s agreement” that Elsevier has been breaking here.”

[Hat tip to Will Cross and to Lisa Macklin of Emory, who discussed the implications of this particular mistake with me by e-mail and provided some ideas incorporated herein. Will qualified his statement quoted above by acknowledging that pre-prints, especially, have a longer history, but the use of these distinctions as contractual dividing lines is related to recent pressures on publishing.]

I had thought that my two most recent posts reflecting on the future of research libraries would end the year for this blog.  But I find two issues have arisen that I want to comment on.  Since they both involve copyright — one is merely my observations and the other involves reporting on a recent court decision — I consider this post a year-end copyright roundup.  Yee Haw!

I have commented before about the campaign that Elsevier has undertaken to send take down notices regarding PDFs of articles they have published that are posted on Academia.edu.  At that time, I expressed the hope that the American Association of University Professors would get involved.  The AAUP has been very diligent in defending the copyright interests of faculty, correctly perceiving that rights ownership can be an issue of academic freedom.  Unfortunately, up till now, at least, this concern of the AAUP has had a huge blind spot — the threat to academic freedom that is posed when copyright is transferred to large commercial interests like Elsevier, usually gratis and on terms dictated by the assignee rather than the author, which do not share the values regarding scholarship that are held by most faculty authors and by the AAUP itself.

Now we have begun to see that this take down campaign from Elsevier has expanded, as we hear that notices to remove posted PDFs are also being sent in large numbers to universities, presumably directed at copies of articles that are posted on the individual profile or research sites of the faculty authors.  These authors clearly believe that they have the right to post these articles — probably because they correctly consider the distinction between their final submitted manuscript and the published PDF to be meaningless — and Elsevier and Elsevier’s insistence that those articles be removed is a direct attack on research sharing, the advance of scholarship and, therefore, academic freedom.  Why does the AAUP remain silent?  In the past they have implied that they did not want to interfere with authors’ decisions about where to publish.  But now we have clear evidence that many authors do not understand the rights situation and their ability to continue their research projects when they assign copyright to Elsevier.  On individual campuses we work to educate them, but we desperately need the voice, and the gravitas, of the AAUP to step in and help faculty authors understand the consequences of these publication decisions.  Thoughtless assignment of copyright is a grave threat to academic freedom, as Elseivier is working hard to demonstrate, and it is an issue that the AAUP cannot ignore without seeming to condone.

As for campus responses to these take down notices, I want to make one point.  These are not ordinary DMCA take down notices; the DMCA, and section 512 of the copyright act that it amended, pretty clearly imagine that take down notices will be sent from the rights holder to remove material posted by some third-party user of an Internet service.  They do not contemplate a situation where the actual ownership of the rights might be disputable.  But that is the case here, where the “user” who posts the PDF is the original rights holder, the author.  Elsevier is sending these notices as a putative assignee.  But we know from long experience that publishers are not good at actually completing copyright transfers, faced with publication deadlines and author disregard of the final paperwork.  So in this unique situation, we cannot be sure that Elsevier actually does hold the rights on the basis of which they are demanding takedown, and that the authors who posted the work are therefore not entitled to do so.  In this situation, simple compliance with the law demands that universities, through their DMCA agents, insist on receiving evidence of a completed copyright assignment — the law requires a written and signed instrument — before they comply with Elsevier’s take down notices.

The case I want to comment on also involves the relationship between universities and authors who hold copyright, in this case the authors of dissertations. In Andrew Diversey v. The University of New Mexico, which was before the Tenth Circuit Court of Appeals and decided on December 23, we had a direct conflict between a dissertation author and his university.  Briefly, Diversey alleged that he had a terrible time with his dissertation committee, finally sent a draft of his thesis to the Dissertation Coordinator for proofreading, and had it “confiscated” by the Graduate Studies Dean.  Subsequently, Diversey discovered that copies of his draft had been sent to ProQuest and to two UNM libraries.  The story strikes me as bizarre, especially since there is no indication that Diversey received a degree or that his dissertation won formal approval.  So it is odd that it was apparently treated as a finished product; there may be more to the story that we do not know.  But ultimately, Diversey sued the University of New Mexico for copyright infringement for copying and distributing his dissertation without authorization.  His claim was dismissed by the trial court because that court said it was filed after the statute of limitations had run out. But the Court of Appeals reinstated part of the claim, for unauthorized distribution, and sent the case back to the District Court.

The crux of the case is whether the University infringed Diversey’s by making copies and putting them in their libraries.  The Court of Appeals finds that it is at least plausible that it did.  The Court recognizes Diversey’s copyright in his dissertation, of course, and suggests that any copying or distribution without his permission, even by the University at which he was a student, is infringing.  Copies were made, according to the Court, but Diversey had notice of those copies far enough in the past that the statute of limitations had run out on his claim for unauthorized reproduction by the time it was filed.  But the Court found that Diversey only became aware of the distribution, by which it means placing copies of the dissertation in the libraries and listing them in a catalog, within the three-year limitations period, so his claim on that alleged infringement should go forward.  The Court also found that a fair use defense would not protect UNM in this set of circumstances.

To me this case is a warning to universities and schools that want to retrospectively digitize Doctoral or Masters’ theses and dissertations, and decide to skip the step of seeking permission from the authors.  It is perfectly true that libraries can distribute “lawfully made” copies under the doctrine of first sale.  But if the copies themselves were unauthorized, so too is the distribution of those copies.  In other words, if the only copy that UNM placed in its library was the one Diversey originally submitted, they could have a first-sale defense. But the University clearly made more copies, since they sent one to ProQuest and had at least two copies in their libraries.  It is the distribution of these unauthorized copies that the Court of Appeals thinks is possibly infringing.  And that situation is very similar, it seems to me, to the making of digital copies of older dissertations and placing them in an institutional repository without permission from the author.  I understand that some institutions decide that it is easier to ask forgiveness in this instance instead of permission.  But to me that attitude is disrespectful of the authors of these works.  And now we have a case that reminds us that that approach can also be expensive.

If an author discovers her dissertation in an institutional repository and is very unhappy about it, she will have three years from the time she either knew or should have known about the unauthorized copy to bring suit.  The fact that the institution might remove the copy from distribution once it learns of the objection will not protect them from such a lawsuit if the author is determined.  The expense of defending that lawsuit would be very high regardless of the outcome, and even higher if the institution loses or has to settle (which is now very likely for UNM in this case).  For these reasons, this case reinforces my long-held belief that systematic digitization of older dissertations or theses is a situation where permission is the better course, since forgiveness might be doubtful and, without it, the cost could be much too high.

The American Association of University Professors is an important organization, and its emphasis on protection the intellectual property rights of academics is admirable.  It is precisely because their work is so important, and because they often seem to be right on the verge of connecting all of the dots related to copyright, publishing and academic freedom, that their statements sometimes frustrate me.

In November the AAUP issued a report on “Academic Freedom and Electronic Communications” that has been widely and justly praised for addressing the revolution in scholarly communications in the digital age in a comprehensive way and keeping the issue of academic freedom firmly at the center of the discussion.  As this article in Inside Higher Ed puts it, the AAUP is updating long-standing commitments in light of a “whole new world.”  For example, the AAUP has recently reaffirmed its position that the copyright in online courseware should remain in the hands of the faculty creators of those courses, a position that was also endorsed by the Duke Academic Council last week.

It is because the AAUP sees that copyright ownership is an integral part of academic freedom that I find its new report just one dot short of a complete picture.  The juxtaposition of two quotes in the Inside Higher Ed article underscores just how close the AAUP gets to seeing the core of the problem:

“While the expanding digital world has promised to make information freely accessible to a global community, commercial forces have locked up most research behind paywalls and ever-more-restrictive licensing agreements,” the report reads. “Any consideration of open access” must conform with the organization’s 1999 “Statement on Copyright,” which concluded that “”it has been the prevailing academic practice to treat the faculty member as the copyright owner of works that are created independently and at the faculty member’s own initiative for traditional academic purposes.”