From: "Hamaker, Charles" <[log in to unmask]>
Date: Mon, 21 Apr 2014 03:12:04 +0000

I realize this is an old thread. but it sprigs back to current issues for
me, as we have a publisher, Sage, wanting us to acknowledge in their
license that the version of the article on their site is proprietary to
them. I have problems with this, as 1. OA articles must mean something,
i.e. different than the uses permitted in the contract for wholly owned
articles. 2. Surely some author sometime has held back certain rights,
including the right to post the publisher's final version in their own IR
or on their own website, thus rights of use, again, would be different
depending on the actual contract. 3. Many institutions for over a decade
now have retained use rights either local or system wide for reuse.

All of those conditions would negate a publisher's claim to have
proprietary rights (or copyright) clear in all cases of all content on
their website. That hasn't stopped various publisher's besides Sage from
demanding libraries acknowledge rights that 1. no library KNOWS about, ie.
we have no way of separately verifying a publisher's claim to have complete
control, even of a version and 2. that's what discovery will do in a court
if the publisher claims copyright or license violation. The acknowledge
statement, which Ann, you include in the model, is a get out of jail free
card for any publisher, whether they have appropriate records or not,
whether they really have the rights they claim or not. Such a statement
should not be in a model agreement, and no publisher should be making
claims they KNOW they cannot prove, nor demand a library verify their
likely incomplete and likely inconsistent handling or even the existence of
contracts  transferring copyright.,  I know there are articles I have
written that do not have copyright transfers. Why would a library
"acknowledge" what anyone who has published over the last 20 years or so
KNOWS is not true?

Chuck
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From: Richard Poynder <[log in to unmask]>
Date: Tue, 4 Feb 2014 11:09:47 +0000

The recent decision by Elsevier to start sending take down notices to
sites like Academia.edu, and to individual universities, demanding
that they remove self-archived papers from their web sites has sparked
a debate about the copyright status of different versions of a
scholarly paper.

Last week, the Scholarly Communications Officer at Duke University in
the US, Kevin Smith, published a blog post challenging a widely held
assumption amongst OA advocates that when scholars transfer copyright
in their papers they transfer only the final version of the article.
This is not true, Smith argued.

If correct, this would seem to have important implications for Green
OA, not least because it would mean that publishers have greater
control over self-archiving than OA advocates assume.

However Charles Oppenheim, a UK-based copyright specialist, believes
that OA advocates are correct in thinking that when an author signs a
copyright assignment only the rights in the final version of the paper
are transferred, and so authors retain the rights to all earlier
versions of their work, certainly under UK and EU law. As such, they
are free to post earlier versions of their papers on the Web.

Charles Oppenheim explains his thinking here:

http://poynder.blogspot.co.uk/2014/02/guest-post-charles-oppenheim-on-who.html