6

Copyright is probably a term that you’ve heard many times. If you’re anything like me, it’s also probably one that makes you feel anxious, confused, or bored. The good news is that its meaning is actually fairly straightforward.

Copyright.gov is the website of the U.S. Copyright Office, and they offer a succinct definition of copyright:

Basically, anytime someone creates something new and original (a story, a drawing, a sculpture, a movie, a song, etc.) and captures it in a tangible medium (a typed document, a piece of paper, a lump of clay, an audio or video recording, etc.), that person owns the copyright to that particular creation. They don’t have to do anything to declare their copyright. The act of creating the thing and expressing it in a tangible medium immediately bestows copyright ownership onto the creator. The U.S. Copyright Office explains that, “registering a work is not mandatory, but for U.S. works, registration (or refusal) is necessary to enforce the exclusive rights of copyright through litigation.”^[2]

One of the key concepts in relation to copyright is creativity. There has to be an element of creativity involved for something to be covered by copyright. Facts, for example, do not qualify for copyright. Another important component is fixed expression. If I have an idea for a movie script, but I don’t actually write it, I do not own the copyright to it. Only once I sit down at my computer and type it out do I own the copyright.

When you own the copyright to something, you have certain exclusive rights to it that others do not have (unless you choose to grant them those rights): for example, the right to reproduce or copy it, to share copies with others, to adapt it into new derivative forms, and to display/present/perform it publicly. These rights are important because they allow you to do more with the thing you have created — to build on it, change it, and use it in a variety of settings — for the rest of your life. Anything created after January 1, 1978 is protected by copyright for the entire length of the creator’s lifetime, plus seventy additional years after their death.

Need more clarity about copyright? Check out this brief video overview titled “What is Copyright?” by the U.S. Copyright Office:

Next, let’s consider how scholarly publishing is related to copyright.

Most of the time, when you access and use materials created by others, you’re relationship to copyright is that of a consumer. Perhaps you are using the copyrighted material in accordance with Fair Use^[3] or you have asked and received permission from the copyright holder to use the work.

However, sometimes you are actually a creator yourself, and in that case, you own the copyright to the work you have created. For example, when you write a scholarly article, you hold the copyright to that article. What happens if you decide that you want to publish your article in a scholarly journal?

While it might seem natural to assume that you will retain your copyright and simply give the journal publisher permission to publish your article, in fact this often is not the case. Rather, once your article is accepted for publication, many journal publishers will ask you to sign a copyright transfer agreement (CTA) that essentially requires you to relinquish your copyright and give it instead to the publisher.

CTAs are problematic because they mean that going forward, the author may be limited as to how they can use and re-use their own work. For example, there may be restrictions on using the material in instructional or classroom settings, distributing copies to colleagues, or adapting the material to create new works.

Therefore, before you sign a publication contract, it’s very important to read it closely and understand its terms. (Even better: investigate journals’ copyright policies prior to submitting your article for consideration. Sherpa Romeo is extremely useful as a free online index of publisher policies, and many journals include their policies on their website.) Unfortunately, CTAs can be difficult to interpret. They are, after all, a legal contract — and as such, they are often lengthy and contain jargon. It can be overwhelming to decipher them in their entirety. But it’s important to take the time to read a CTA so that you know what you are signing. It’s also important to save a copy for your records so that you can consult it in the future if you don’t remember its exact terms.

If the contract requires you to transfer your copyright, you have to decide what to do. You can agree to give up your copyright (undesirable), choose to publish elsewhere (laborious), or try to negotiate retention of your copyright using an author addendum, such as the one developed by SPARC, “a legal instrument that modifies the publisher’s agreement and allows you to keep key rights to your articles.”^[4] Author addendums help authors advocate to retain their rights while interacting with publishers.

If you are able to retain your copyright, you can grant permission to others to re-use or share your work as you see fit. One way to do this is by assigning a Creative Commons (CC) license to your work, signaling to others how and under what conditions they can re-use your work.

Applying a Creative Commons (CC) license to your work allows you to specify what permissions you are granting to others in terms of how they can use/re-use your work. It’s a great way to communicate to others what they can and can’t do with your work going forward. People won’t need to contact you, the author, to ask how they can use it — they’ll know just by looking at the CC license that you’ve selected.

There are six CC licenses from which to choose, and they look like this:

For example, if you want to permit others to share and modify your work — but without generating revenue from it — then you would choose the Attribution-Noncommercial (CC BY-NC) license. Granting permission to others to share or re-use your work, whether by a CC license or some other means, results in greater exposure, discovery, and (ultimately) impact of your work. 

Finally, this chapter concludes with two exercises. First, take a look at a few publication contracts to see what rights authors retain (and relinquish) when they publish their work with these entities. Then, choose which Creative Commons license you think is best for three specific scenarios. If you were in these characters’ shoes, which license would you select?