This unit provides a primer on aspects of United States copyright law as it relates to library publishing. Many of the principles relating to copyright apply in other countries, as well but specific aspects, including exceptions such as fair use, vary by the country in which the work is reproduced or modified. When in doubt, be sure to check the copyright rules of the applicable country. The unit approaches issues of copyright law as they apply to both the work of the publishing group and the rights of the author. Nothing in this unit constitutes or substitutes for legal advice, and it is important to work closely with university counsel when developing copyright policies.
There are two basic kinds of copyright policies that a library publishing unit will need to create: 1. An externally facing copyright policy for authors considering publishing with the library publishing unit; and 2. A copyright review policy for internal purposes (i.e. how to review submitted publications for copyright issues).
It is important to maintain a public copyright policy to inform authors and users about the types of works published by the unit and the requirements for authors related to rights. Does the publishing unit only publish works that are freely available to read? Does the unit require authors to assign a Creative Commons license to their work? (See below for more information about Creative Commons.) These and related policies should be clearly indicated in the policy.
It is also important that the public copyright policy reflects the legal burden the publishing unit is willing to undertake. If the publishing unit is not comfortable with any assertion of fair use (see the “Using Others’ Work” section below), this should be communicated to authors, who will need to obtain permissions for every source they use (beyond short quotations) in their work. Additionally, the policy should state whether it will conduct its own thorough copyright review for each publication, or if that responsibility will be shifted to the author and/or editor. These provisions will help prospective authors understand the scope of their responsibilities when working with the publishing unit.
Even if the unit’s legal agreements shift legal liability for any infringement to the author of the offending material, the library publishing unit should do some level of copyright review. This is a good practice and may help insulate the library publishing unit from potential liability if a court finds secondary liability present or finds the terms of the author’s warranty lacking. It is helpful for the unit to have an internal policy that describes the process for this review, and to consult with general counsel in determining what type of review is necessary and how to handle specific situations (e.g. assertions of fair use by authors).
For liability reasons, It is inadvisable to post this internal policy publicly, especially if it includes rules for acceptable fair uses and other specific guidelines for interpreting copyright law in your local context. Courts consistently indicate that fair use determinations and other interpretations of the broad provisions of copyright law should be made on a case by case basis, so guidelines, checklists, and other local rules may provide fodder for legal conflicts. It is important to note that internal policies may still be made public as part of legal proceedings, so all policies should adhere to the law and general counsel should be consulted when creating them.
Before we delve into the details of how to create and use these two policies, we will explain the underlying legal issues. The end of the unit returns to the copyright policies that should be created and provides participants with sample policy language for possible adoption.
Copyright is a set of rules that protect creators of original works. Works subject to copyright protection include writings, music, recordings, pictures, artistic works, and sometimes (in terms of the arrangement and selection of facts) even data. Individuals commonly assume they have to do something special to “own” a copyright (like file for a registration with the Copyright Office), but that is not the case. Since March 1, 1989 in the United States, you do not have to do anything other than create a minimally creative work and “fix” it in some way (write it down or record it, including on a computer). At that point, the author automatically gains the “bundle of rights” we know of as copyright: the nearly exclusive right to reproduce, distribute, display, and perform the work, as well as the right to create any derivative works and to license (or “contract”) any of those rights to third parties. If there are multiple authors, the default rule under copyright law is that all authors own an equal share in the entire work. That is, with no written agreement to the contrary, a joint author is free to give permissions to use the work (licenses) on behalf of all authors so long as they split the earnings, if any.
Copyright for works created today last a very long time: the life of the author plus 70 years (and even longer if it is a work made for hire or owned by a corporation). As of 2018, anything published in the United States before 1923 is in the public domain. This means that the copyright has expired on those pre-1923 US published works and anyone can do anything they wish with those works. And, on January 1, 2019, works published in the US in 1923 will enter the public domain.
Some works published between 1923 and 1978 are now in the public domain because they failed to meet the copyright formalities that were then required at the time of publication. There are some publicly accessible guides that help to explain this period in copyright history, including:
When authors plan to publish a written work, they need to consider who will hold the rights to their work after publication. Academic authors, in particular, may wish to use their work in the future for teaching, conferences, sharing with colleagues on Twitter or email, and much more. However, if the academic author transfers her copyright to the publisher (as publishers sometimes request), then she will have no more rights to this work than to a work by another author and will need to operate within the constraints of copyright (e.g., requesting permission before distributing the work). It is important to note that transferring an “exclusive license” to distribute a work is the same thing as a complete transfer of copyright to a publisher. What is preferable, for many authors, is to provide a publisher with a “non-exclusive” license to distribute the work which then allows the author to retain the copyright over the work. Included in the recommended reading list is the SPARC Author Addendum, which can be used by an author to request or negotiate with a publisher for the retention of important rights.
A library publisher, like any other publisher, has certain interests to bear in mind relating to copyright in the publishing agreement. The publisher must have certain rights to the work in order to distribute the work, whether in print or electronically. Additionally, in order to maintain or preserve the work, the library publishing unit must have the right to make archival copies of the work and to refresh these copies as new technology emerges. The library publishing unit will generally accomplish these goals through the use of a non-exclusive license from the author to distribute and preserve the work. Suggested language for this type of license can be found in the Legal Agreements unit of this module.
The library publishing unit may be directly engaged with the content and with the authors (as is often the case when publishing monographs and sometimes when publishing journals and other formats), or may act more as a service provider and technological platform for those engaged with the content (as is often the case in journal publishing and in lightweight publishing services of all kinds). The role of the unit and its engagement with the content will have an impact on copyright terms and workflows. Generally speaking, the more engaged the unit is with the content, the more control it will have over the legal terms under which it is published. Regardless of the terms being used, the library publishing unit should always obtain publication agreements. More guidance on creating and using publication agreements is included in the Legal Agreements unit.
Library publishers who make the content they publish freely available online also have the option of removing barriers to reuse through the use of Creative Commons (CC) licenses, which specify under what conditions a work can be copied and distributed (or modified) without needing to ask for permission. The Creative Commons website does an excellent job of walking users through the different types of licenses available, but most of them are built from a few basic provisions. Most of the licenses require attribution of the author and source of the material (the “BY” provision). The “NC” or non-commercial provision indicates that the work cannot be used in a commercial context, while the “ND” or no-derivatives provision indicates that the work cannot be modified. Finally, the “SA” or share alike provision indicates that the user must apply the same Creative Commons license to any work they produce using the material. It is important to note that Creative Commons licenses do not replace copyright, but rather provide an extra permissions layer on top of it. The rights holder of a CC-licensed publication should always be identified on the publication, and is still able to grant permission for uses that fall outside of the license terms.
Creative Commons licenses are often attractive to library publishers committed to making their publications as accessible and widely distributed as possible. Openly licensed publications are easier for users to download, reformat for accessibility, share, and build on, and may increase the reach and impact of the work being published.
Decisions about CC licensing may be made at the program level (the unit may require that all publications are published under a CC license); at the publication level (a particular publication may require or prefer a CC license); or at the author level (the author is allowed select a CC license).
Having a clear and consistent policy requiring a particular Creative Commons license at the program level can encourage the adoption of open licensing while keeping policies simple for authors, editors, and others. (For an example, see the University of Pittsburgh’s CC BY requirement for the journals they publish.) However, Creative Commons licenses may not be the right fit for every publication, and library publishers should take local needs into account when making program-level licensing decisions. For units that want to move towards a universal CC requirement for their publications, a ‘default CC’ policy may be appropriate. Under a default policy, publications will be expected to use Creative Commons licensing, but may request an exception based on individual circumstances.
If use of Creative Commons is being decided at the publication level, the unit should work with the editor (or other responsible party) to help determine the most appropriate license and to communicate it to authors, readers, and editorial board members. If authors are empowered to select a Creative Commons license for their work, the unit should make sure that they are being provided with the information they need to make an informed decision.
Any Creative Commons requirements or options should be included in author agreements and in public-facing policies and other copyright documentation. Library publishers should also carefully follow CC’s guidelines for how to indicate that a particular work is licensed under Creative Commons.
Even if Creative Commons licenses are not currently in use in a library publishing program, it is helpful for the staff to understand what they are and how they work. Authors may wish to incorporate CC-licensed content into their work, and the unit may need to advise them on how to comply with the terms of the license. For more on advising authors on incorporating other works into their new publications, see Using Others’ Work below.
While it is not necessary to register a work with the Copyright Office in order for it to be protected, all work published in the United States must be deposited with the Library of Congress, unless granted an exemption. See Copyright.gov for more information.
One such exemption is for most works that are solely digital with no print editions.
Although not necessary, it can be helpful to register a work with the Copyright Office, and many authors and publishers continue to do so for a couple of reasons:
It is relatively simple to file a copyright registration and the fee is negligible. The Copyright Office website is fairly easy to follow regarding the process. You can register born digital or “electronic serial” items, such as web pages, by completing the registration forms, providing the fee, and furnishing a copy of the electronic work as well as accompanying metadata to the Copyright Office.
Library publishers should understand how to legally use the work of other creators in the work they publish. There are three ways to legally use others’ work when creating a new work: 1) using work that is in the public domain; 2) making a fair use of the work; and 3) asking for permission.
Fair use allows an author (and a publisher of the author’s work) to use the copyright-protected work of others without first asking for permission under certain circumstances. The preamble to the fair use provision of the Copyright Act provides that “criticism, comment . . . teaching . . . scholarship, [and] research” fit squarely into the types of uses the provision was meant to protect. 17 U.S.C. § 107 (2012). However, fair use is a four-factor test and all of the factors must be considered on a case-by-case basis when determining whether a given use is a fair use. The factors are, “1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; 2. the nature of the copyrighted work;3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work.” (Ibid.)
In addition to the four-factor test, courts also consider whether the use is transformative. A transformative use is one that alters the original work "with new expression, meaning or message . . .." Campbell v. Acuff-Rose Music, 510 U.S. 569, 579 (1994). The more transformative a work is, the less the "negative" weight of the other factors would impact the analysis. For instance, in the Google Books decision [see Author's Guild v. Google, Inc., 804 F.3d 202 (2015)], even though Google Books is a commercial enterprise (negative weight under factor 1), and was copying entire books (negative weight under factor 3), the fact that the "snippet" view used by Google Books was transformative made the use a fair one in the opinion of the Second Circuit Court of Appeals (note that this case was never decided at the Supreme Court level).
An important note for library publishers - fair use determinations for a work need to take into account all formats and distribution channels for the work. Fair use of an image included in an open access online publication may have different contours than fair use of that same image in a print-on-demand setting, or in a full-text commercial scholarly index.
Because fair use is determined by the courts on a case-by-case basis, there are no hard-and-fast guidelines for authors and publishers to use when deciding whether a given use of copyrighted material is fair. Each library publisher will need to decide, in consultation with University Counsel, in what situations they are comfortable relying on fair use. This decision should take into account both the specifics of the law and the institution’s tolerance for legal risk related to copyright.
If the use in question does not meet the unit’s standards for fair use, written permission will need to be requested from the rights holder. If the library publishing unit and the publication are non-profit and focused on research and/or education, this should be stressed to the copyright owner, which may be more likely to grant permission and less likely to request payment. The request should indicate exactly what portion of the work is being used, and should note the duration of the use (generally, in the case of scholarly publications, indefinite) and the audience for the publication (e.g. if it will be freely available online). The request for permission can come from the publisher or the author, but the library publishing unit may wish to keep a copy of the permission letter on file. Sample copyright permission request documentation is available at the Columbia Copyright website.
The unit’s public-facing copyright policy does not need to be lengthy or complex - in fact, it will ideally be brief and human-readable. As always, the policy should be created in consultation with general counsel. It should include the following information (all of which should be familiar based on this narrative so far):
Open access - The policy should note whether all unit publications will be made freely available online, and should indicate whether exceptions - either temporary (e.g. embargoes and moving walls) or permanent - will be granted, and under what circumstances.
Copyright ownership - The policy should indicate to authors whether they will retain ownership of their copyright and, if so, what rights they will grant to the publisher. If the author will be required to transfer copyright or agree to an exclusive license, the policy should indicate what rights the author will retain.
Creative Commons licensing - The policy should indicate how Creative Commons licenses are being used and whether their use is mandatory.
Author responsibilities - The policy should indicate that authors are responsible for following copyright law in their use of third-party materials. If the unit wants to provide authors with specific guidance around fair use (e.g. if the institution’s risk tolerance is low and it prefers to avoid invoking fair use), that can also be included.
The policy should be posted on the unit’s website with a ‘last updated’ date and contact information. Individual publication policies (such as journal websites) should be checked for compliance with the unit policy, and all partners should be notified of the policy. Announcing a new or updated copyright policy is an excellent opportunity to speak with authors, editors, and other partners about rights, and to advance unit goals (such as encouraging more publications to use Creative Commons licenses).
New and prospective authors and other publishing partners should be referred to the policy to ensure that the unit is a good fit with their needs and expectations, and to surface misconceptions about copyright and licensing.
The level of detail and formality of this policy will depend on the needs of the unit, but the following should be considered (and discussed with general counsel) when creating it:
Who is responsible - This can be a single individual charged with performing a copyright review of all content or multiple people with different roles in the process.
What they are responsible for - What are the people identified in the first bullet charged with doing? For example, the author of a piece may be responsible for notifying the library publishing unit about any third-party content, at which point the unit asks the copyright librarian to perform a fair use analysis of the content. If the copyright librarian determines that the use is not fair, the author may be asked to request permission from the copyright holder.
Determining fair use - How comfortable is the institution with asserting fair use? Who is empowered to decide whether a use is fair? Are there circumstances in which fair use is assumed (e.g. brief quotations) or is not to be invoked?
Record keeping - What decisions need to be recorded for future reference? Does general counsel recommend that you perform and keep a written fair use analysis for each fair use, or that such work be done verbally?
Some of this information may be recorded in an internal written policy, which could be as simple as, “The Library Publishing Unit will designate an individual member of the unit to conduct a Copyright Review of a first draft of a submitted work to determine the need for appropriate permission requests. The author of the work is responsible for obtaining the required permissions, if any.” Some provisions may need to be incorporated into public or partner-focused documentation (e.g. author responsibilities).
Review - Even if authors are charged with following copyright law and performing fair use analyses for third-party content, it is helpful to have some level of review happen at the unit level. The library is more likely to have the expertise necessary to make informed decisions about legality and risk, and the publisher (or, in the case of university libraries, the parent institution) may be targeted in a lawsuit, regardless of whether agreements shift liability to authors.
Documentation - We suggest having a written copyright agreement for each author and maintaining it as part of the unit’s records. If collecting individual author agreements isn’t feasible, a copyright agreement with the editor or other partner may be sufficient. See the Legal Agreements unit for further guidance.
Timing - Copyright review should not be left to the last minute, since locating the appropriate party to ask for permission and receiving that permission in writing can take some time.
Expertise - If the library publishing unit does not have a copyright specialist on staff, it may be necessary to consult with campus general counsel regarding how to best handle copyright risk related decisions. Alternatively, it may be worth the time to invest in a bit more training for a designated person in the library publishing unit to obtain additional professional development through a copyright course or training. Copyright X is a comprehensive course run through the Harvard Library and is cost-free to a limited number of librarians each year. Also, Peter Hirtle’s open access book on “Cultural Institutions” listed in Resources below is a thorough primer on copyright law.
This unit should have provided you with basic copyright knowledge and an understanding of how to create and use copyright policies (both internal and external). As you review the below Sample External Copyright Policies, consider how the library publishing unit’s policy reflects their goals and values around open access, copyright and author’s rights.