Science 4 September on Copyright

[Ann Okerson <aokerson@pantheon.yale.edu>]

Here is a 4th licensing message in the amsci-forum.  

A couple of liblicense-l readers have asked me if the messages we forward
to this list capture the entire amsci-forum discussions?  The answer is
no, we are sending along only those that might shed some light in dark
corners re. authors of scholarly articles licensing publishers (rather
than transfering copyright).  And we're trying to pick the most salient of
those. For an extended discussion about the broad issues of scholarly
communications, please subscribe to the list below.

---------- Forwarded message ----------
Date: Tue, 8 Sep 1998 12:13:13 -0400
From: "Arthur Smith <apsmith@APS.ORG>" <harnad@coglit.soton.ac.uk>
To: SEPTEMBER-FORUM@AMSCI-FORUM.AMSCI.ORG
Subject: Science 4 September on Copyright

INTELLECTUAL PROPERTY: Who Should Own Scientific Papers?
     Bachrach et al.
     Science 1998 September 4: 1459-1460

http://www.sciencemag.org/cgi/content/full/281/5382/1459

     EDITORIAL: The Rightness of Copyright.
     Bloom, F.
     Science 1998 September 4: 1451.

http://www.sciencemag.org/cgi/content/summary/281/5382/1451

On Fri, 4 Sep 1998 17:24:34 -0400, Mark Doyle <doyle@APS.ORG> wrote:

>There are two approaches to copyright: The first is that the author cedes
>it to someone else who can then turn around an immediately grant back to the
>author many rights (as the APS currently does). The other is for the author
>to retain the copyright and just turn over a limited portion of the rights
>to a publisher (as argued in the Science article).

Actually at this point it's useful to look at the legal definitions
associated with copyright:

http://www.law.cornell.edu/uscode/17/101.shtml

In particular, any exclusive license, which I believe is required for
publishers to cover costs (through reader payments - ie. S/SL/PPV) as
well as to avoid duplication issues most scientific publications are
leary of (the same paper published in Nature, Science, and Physical
Review Letters?) is viewed legally as a "transfer of copyright
ownership". But it does not have to be a transfer of ALL the rights
associated with copyright.

These rights are summarized in section 106 of the law, and can be owned
separately, or each one partially owned (with various conditions etc)
by separate parties. The one right that publishers will most likely
need exclusively (at least in part) is (3), "to distribute copies [...]
to the public by sale or other transfer of ownership, or by rental,
lease, or lending." ie. the right to sell copies of the work.

The other rights can be granted through a license from the author
without a transfer of ownership. It is also interesting to note that
authors may revoke both exclusive and nonexclusive licenses 35-40 years
later, and works enter the public domain generally after 75 years (or
50 years after the death of the author, if the author's life or death
status has been registered with the copyright office)

Anyway, the article in Science by the "Transition from Paper" group
recommended a "nonexclusive license" which does not constitute transfer
of any of the rights associated with copyright. I think there are a lot
of potential dangers in going this far, and not just to the publishers.
Let's just imagine a world where publishers had no legal means to
prevent, and no monetary compensation for, duplicate publication by
authors, or third parties publishing subsets ("The Best of ..."),
duplicates, or supersets of articles from well-known journals.
Is this what the authors of the article in question wanted? Perhaps
members of the "transition from paper" group can respond on exactly
what they meant?

I think there is an optimal copyright position for both author and
publisher where most of the rights are retained by the author. Some
publishers may want more restrictive agreements, some less, and of
course it will be up to authors to decide what they are willing to live
with. But government mandates on the issue are unlikely to be helpful.

Arthur Smith <apsmith@aps.org>