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LIBLICENSE-L  February 2014

LIBLICENSE-L February 2014

Subject:

Re: Charles Oppenheim on who owns the rights to scholarly articles

From:

LIBLICENSE <[log in to unmask]>

Reply-To:

LibLicense-L Discussion Forum <[log in to unmask]>

Date:

Sun, 9 Feb 2014 19:04:39 -0500

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From: Michael Carroll <[log in to unmask]>
Date: Fri, 7 Feb 2014 16:58:38 -0500

Hi all,

I wrote about this in 2006.

http://carrollogos.blogspot.com/2006/05/copyright-in-pre-prints-and-post.html

Here's a shorter version of the analysis:

Assume for a moment that a journal publication agreement assigns only the
exclusive rights in the final version of the article. The fundamental
misunderstanding is about what the author has given up.  The author
initially owns the exclusive rights under copyright in the work of
authorship, which is the author's original expression contained in the
final article.  This means the author has the legal authority to exclude
others from making exact copies or copies of the work that are
substantially similar to the original.  When the author transfers this
exclusive right to the publisher, the author now has the legal status of
any other member of the public with respect to the final version of the
article.  [Let's leave aside for the moment any provisions of the contract
that may give the author rights to post a draft online.]  Assuming that
fair use, fair dealing or other user rights do not apply, posting a
substantially similar version of the final article online would infringe
the publisher's right of reproduction regardless of whether the person
posting is the author or any other member of the public and whether the
substantially similar version is a prior draft or a variation created
after publication.  That's what it means to give up your rights under
copyright, and that's why the record label was able to make a claim
against John Fogerty (referenced in my 2006 post) for allegedly infringing
the rights in a song that he had previously written but to which he no
longer owned the copyright.

It is simply not the law that an author who has transferred the exclusive
rights under copyright in the final version of an article still owns some
residual rights in a prior draft that would allow the author to post it
online if the draft and the final version are substantially similar to
each other.  And, the courts have defined the zone of substantial
similarity to be fairly broad.  Even if only half of the draft corresponds
word-for-word with the final version, that would be substantially similar
and could not be posted.


Best,
Mike

Michael W. Carroll
Professor of Law and Director,
Program on Information Justice and Intellectual Property
American University Washington College of Law
Washington, D.C. 20016
Office: 202.274.4047

Faculty page: http://www.wcl.american.edu/faculty/mcarroll/
Blog: http://carrollogos.blogspot.com

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