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