Below is a preliminary statement of a change in Yale's copyright management policy advanced in the university's Committee on Cooperative Research. THIS DOCUMENT DOES NOT REPRESENT YALE POLICY nor the views of the Committee-which debated the statement but forwarded it to the Provost with neither vote nor recommendation. Scott Bennett, University Librarian at Yale, is the document's author. He is making the statement available "with the hope that we can find ways to share information about institutional efforts, including those still in process, to effect change in copyright management policies."


Position Paper on Yale University Copyright Policy

Prepared for the
COOPERATIVE RESEARCH COMMITTEE
By Scott Bennett
University Librarian

March 1998

INTRODUCTION

The University's existing copyright policy addresses ownership issues. Under existing policy the University disclaims, except in defined circumstances, any ownership of the copyrights in books, articles, and other scholarly works created by faculty, stud ents, and staff.

This is a sound basis for University copyright policy and is characteristic of the policies found at other leading research universities. Even though the University advances no ownership claim to copyrights in most copyrights created at Yale, it is appro priate for the University to urge that copyrights be used to advance education goals.

This paper describes how an addendum to University policy might encourage faculty, staff, and students to use their copyrights to facilitate their own scholarly work in teaching and research at Yale and elsewhere. This paper (1) characterizes the policy addendum that is needed; (2) identifies the values such an addendum should foster and the realm within which it should operate; (3) outlines the broad options faculty and others have for using their copyrights and recommends one of them; and (4) recommend s means of implementing the policy addendum.

(1) CHARACTERISTICS OF THE POLICY ADDENDUM

Existing University policy defines the copyright ownership position of faculty, students, and staff. This policy is legally binding.

By contrast, the proposed policy addendum will address the use of the author's ownership position and will not be legally binding. It will be advisory instead. The policy addendum will help faculty and others understand the options they have in exercisi ng their rights as copyright owners, and how some of these options can significantly advance the teaching, learning, and research enterprise to which members of the campus community are committed. The policy addendum will encourage uses of copyrights som ewhat different from common practice and may invoke University resources to help enable this use.

Formal advocacy of the policy addendum by the President and Provost and adoption by the Yale Corporation is sought not for enforcement reasons but to underscore the vital importance of the addendum to the strength of teaching, learning, and research at Ya le.

(2) VALUES AND REALM OF POLICY OPERATION

The policy addendum seeks to:

The fundamental business of education is to create and share knowledge. The existing marketplace for intellectual property often accomplishes this through the strong and productive balancing of creators' and users' rights that copyright law is designed t o achieve. This commonly happens where strong competitive forces work in relatively large markets—as, for instance, in the publication of textbooks, trade books, and imaginative literature, or in the creation of software and courseware. The effective sh aring of knowledge is jeopardized in smaller markets where few competitive forces exist to identify a commercial interest for the author. This is commonly the case in the publication of many specialized scholarly monographs and most journal articles, whe re reading audiences are relatively small and publishing outlets limited in number. Especially with regard to journal articles, authors commonly give away their ownership rights in exchange for prestigious publication. In doing so, they often lose sight of the real but diffuse commercial value of their copyrights in the larger enterprise of teaching, learning, and research. As a result, publishers are a liberty to control the use of the author's work, sometimes imposing significant costs and administra tive burdens on using the work for non-commercial education purposes. Rarely does the author have any voice in deciding how the work will be used.

The policy addendum should therefore address primarily those authoring and publishing situations where small markets fail to define economic interests effectively. Of course there is no bright line separating effective from ineffective marketplaces. The advisory nature of the policy addendum acknowledges and supports the need of individual authors to understand and make their own judgments about the marketplaces in which they publish.

(3) OUTLINE OF OPTIONS AND RECOMMENDED POLICY

Copyright law gives the creator of copyrighted work exclusive rights, including principally the right to publish the work in print or other media, to reproduce it (e.g., through photocopying), to prepare translations or other derivative works, and to aut horize others to exercise any of these rights. These rights may be both segmented and transferred to others. Copyright creators may therefore transfer some or all of these rights to a publisher. The copyright creator may also retain ownership but grant licenses to other parties to exercise one or more of these rights. Copyright licenses may be exclusive or non-exclusive; for a specified period of time or for the full term of the copyright; royalty-free or royalty-bearing; for one medium or many; or de fined or restricted in various other ways.

Faculty and other academic authors have three options, broadly speaking, for managing their copyrights:

Use of the first option, though common, is ill advised because it allows the publisher to prohibit or heavily burden many republication and educational uses of copyrighted works, without even consulting the author. The difficulty in using the second optio n lies in the author's need to anticipate everything he or she may wish to do with the work, especially over time as information technology transforms both publishing and instruction.

Faculty and other academic authors maximize their freedom to use their own work, and that of like-minded colleagues, when they decline to transfer copyrights to their scholarly work to publishers, but routinely grant publishers exclusive licenses for the first formal publication of their work (in print, digital, or some other form) and non-exclusive rights for at least the following purposes:

Faculty and other academic authors may often, but not routinely, wish to grant non-exclusive licenses to publishers for the following additional purposes:

Finally, faculty and other academic authors who retain their copyrights may wish to grant a limited set of rights that any reader can exercise without explicit permission. These rights might involve the use of the author's work for non-profit educational purposes.

There are four essential features of these recommendations. (1) The author retains all of his or her rights under the copyright law. This is essential to fostering the values described in the second section of this paper. (2) The right of first formal publication is licensed to the publisher and secures the publisher's essential business interests while advancing the author's interest in prestigious publication. This license for formal publication does not prohibit the author from using, if he or she wishes, a variety of informal means of circulating the work before formal publication, including self-publication (on a personal Web site) or unjuried publication on Internet lists used by a number of disciplines to provide early exposure to research resu lts. (3) The non-exclusive rights granted for other activities permits the publisher to pursue sometimes important but secondary lines of business, but allows the author and others he or she may license to do the same. This freedom for alternative means of action creates now absent incentives for everyone concerned to act in competitive, cost-effective ways. (4) The author should be in a position to create any blanket grant of re-use rights he or she wishes, as a way of advancing education and simplify ing rights management.

Additionally, the grant of both exclusive and non-exclusive rights may be time-bound. There may be circumstances, for instance, in which faculty and other authors might wish to limit the duration of an exclusive license to first formal publication or of a non-exclusive right to subsequent republication or the creation of derivative works. Or one might wish to grant a time-bound exclusive license for activities normally performed under a non-exclusive license.

(4) POLICY IMPLEMENTATION

There are three key implementation questions. How will an advisory policy be developed and promulgated? How will faculty and other authors actually manage the rights they retain under the recommended policy? What can be done to promote the adoption of the recommended policy beyond Yale?

First, a widely consultative procedure is needed. It might include a series of “town meetings” on copyright issues among the faculty and an invitation to publishers to comment on the proposed policy. The policy addendum should also be reviewed and approv ed as part of the University Copyright Policy, so that the President and Provost can advocate it as official University policy.

Second, by retaining ownership of their copyrights, faculty and other authors will take on some responsibility for managing those rights. When faculty and other authors assign their copyrights to publishers, publishers become responsible for all manageme nt of those rights. When faculty retain their copyrights and grant non-exclusive rights to publishers of the sort recommended above, publishers may continue to manage those rights under the terms of the license. But faculty and other authors will, in so me measure, become newly involved in the ongoing management of their copyrights and in responding to people who wish to use their works. This new involvement might be facilitated by:

These mechanisms for facilitating use under the proposed copyright policy addendum may seem somewhat burdensome. One can imagine these mechanisms changing over time, as new practices are more widely adopted. One might even imagine an importantly expande d registry role for the Copyright Office at the Library of Congress, to accommodate these new practices. The important point here is that the means of implementing new copyright management practices will evolve over time, and the assessment of the value and cost of implementation strategies will change accordingly.

Third, and finally, the copyright policy addendum will be designed to advance crucial values for teaching, learning, and research. It is in Yale's interest to pursue such a policy and to work for its broadest possible adoption, so that Yale faculty and s tudents can use scholarly works from other institutions as freely as other scholars will be able to use Yale works. Such adoption will require a significant leadership and educational effort pursued through various academic, professional, and disciplinar y societies, through the publishing community, and among other universities capable of exercising leadership on such a matter. This effort must begin somewhere. Yale is an excellent place to start a process of fundamental change and education in the man agement of copyrights.