copyright protection paper

[Samuel Trosow <strosow@uwo.ca>]

I think your survey results actually support my argument that individual
funding agencies are not adequately enforcing the interest that has been
reserved by the federal government.  Under OMB Circular A-110, (and a long
list of CFR provisions implementing the circular at the agency level)the
federal government reserve a "royalty-free, nonexclusive and irrevocable
right to reproduce, publish, or otherwise use the work for Federal
purposes, and to authorize others to do so."(further discussed in my paper
in section I-C-1)

While I am not able to gain access to the full text of the ALPSP study, I
have read the executive summary as well as the materials at the
www.surf.nl site to which Sally referred.  These studies confirm that for
the most part, publishers are seeking (and are obtaining) copyright
interests from grantee/authors that are in excess of what the
grantee/authors actually own. How can a grantee/author assign to a
publisher an exclusive right, when by virtue of the standard federal
reservation of rights, there is already another party with existing rights
in the copyright?

As an example, take the ALPSP License (available at
http://www.alpsp.org/grantli.pdf), which requires the author to grant the
exclusive reproduction and distribution right to the publisher.

In the first bulleted paragraph, the author grants an exclusive interest
to the publisher, ("By signing this form, you (the author(s) or other
copyright owner) agree to grant to us (the publisher) the exclusive right
both to reproduce and/or distribute your article (including the abstract)
ourselves throughout the world in printed, electronic or any other medium,
and in turn to authorise others (includingReproduction Rights
Organisations such as the Copyright Licensing Agency and the Copyright
Clearance Center) to do the same.")

I'm not clear how one can grant such an exclusive right when a third party
has already reserved substantial rights. While non-exclusive, these rights
are indeed quite substantial.  The government may reproduce, publish, or
otherwise use the work for Federal purposes.  In addition, it can even
authorize others to do these things. This reservation very clearly cuts
off the ability of the author/grantee to convey a full and exclusive
interest.

As a practical matter, and this points to the need for some further
Congressional intervention, the federal government has not enforced this
right. The reserved right is routinely ignored in the normal course of
licensing practice between grantee/authors and publishers.

The post-assignment concessions that are made to authors, which you point
to, are all well and good, but these retainined rights should not be
confused with the copyright interest itself, which has already been given
up. Nor do these benefits necessarily filter down to the general public
outside of the authors' institution as many of the concessions are so
limited.  We could also flip around some of your bulleted points to show
the the glass is still quite empty -- that about 65% of publishers still
disallow authors to post to their own website, about 75% per cent still
disallow authors to post to the institutional web site and about 80% still
disallow posts to pre-print servers. We could also say that after
publication, over 50 per cent disallow posting to the author's website,
over 70 per cent to the institutional web site and over 90 per cent to
pre-print servers. And there are still some publishers (about 20%)who
disallow re-use of the published article within the author's academic
institution, and almost half disallow the author to re-use his or her
material within his or her own publications.

Samuel Trosow University of Western Ontario

John Cox wrote:
> Sally makes some very good points.  As the joint author of the Scholarly
> Publishing Practice report (http://www.alpsp.org/news/sppsummary0603.pdf)
> she refers to in her second paragraph, I can confirm the following
> numbers, based on an extensive survey of international publishers, both
> commercial and non-profit:
>
> 1.  83 per cent of publishers do seek an assignment of copyright from
> their authors; most of the remainder seek a formal licence to publish.
>
> 2.  PRIOR TO PUBLICATION, over 35 per cent allow authors to post to their
> own website, nearly 25 per cent to the institutional web site and nearly
> 20 per cent to pre-print servers.
>
> 3.  AFTER PUBLICATION, nearly 50 per cent allow posting to the author's
> website, nearly 30 per cent to the institutional web site and nearly 10
> per cent to pre-print servers.
>
> 4.  Over 80 per cent of publishers allow re-use of the published article
> within the author's academic institution, and more than half allow the
> author to re-use his or her material within his or her own publications.
>
> Isn't Sabo a sledgehammer taken to a nut that has already been cracked?
>
> John Cox
>
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