Thursday, August 12, 2010
Where are we now with copyrights?I'm wondering if, post-tenure, I should stop being willing to assign my copyrights to the law reviews/university presses, etc, and just insist that they publish it under a creative commons license or, more traditionally, that I hold the copyright and they can have the relevant licenses and warranties, and if they don't like it, I'll publish elsewhere. Do you guys make a fuss about this stuff? Is it worth it? Practically, I feel like it makes little to zero difference in my life since I don't think "breaches" of the typical author-publisher agreements occur and if they do, I doubt they are enforced. (Has anyone had that experience or heard of it happening?)
That said, I don't see the rationale for giving someone else my copyright for zero compensation -- I'd sooner give it to the public domain... And why is it that the law reviews managed to reduce their work load with respect to shorter articles, but they and the academic presses haven't fully yielded to open-access or more authorial control? Would there be a solution if law schools or universities said they were committed to open-access and that the only scholarship considered for tenure/raises, etc would be that which is published a) where the author retains copyright and/or b) the publication occurs under creative commons-type licensing scheme?
One thing is true: increasingly authors with good academic presses have been able to negotiate rights to give away their book for free electronically for noncommercial purposes. I think Zittrain, Benkler and Solove were able to do this. And Ethan and Jennifer and I were fortunate to do that too, and so very soon we will be putting Privilege or Punish on the web for free. I hope you consider assigning it to your classes or perhaps more helpfully, using it (gratis) as a leveler for a wobbly table nearby.
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Insist on keeping your copyright or publishing under CC-SA-AT (Share alike, Attribution). We (CALI) are working on assembling all sorts of teaching materials - casebooks, course notes, etc. at the Legal Education Commons at www.cali.org/lec and we are also going into the casebook biz with the eLangdell Stimulus Project www.cali.org/elangdell.
Posted by: John Mayer | Aug 13, 2010 12:08:11 AM
I've never had a problem negotiating with law review editors on this point. At the same time, it is not for "zero compensation." They are publishing your article, and depending on the law review that can be worth quite a lot, even if you have tenure.
Posted by: TJ | Aug 13, 2010 12:30:31 AM
Sometime about two years ago, I found that the negotiating process with law reviews over copyright flipped. Before then, it had been difficult to explain why I wanted to give only a nonexclusive license and to put a Creative Commons license in the star footnote. Always successful, never easy. But more recently, it seems that the law reviews have stopped caring, perhaps because the generation of students running them turned over. Their contracts are now generally fine to begin with; if I need changes, the editors are willing to make them without batting an eye.
The two great reasons to insist on CC are that (a) it insures that you can put the article everywhere you want on the web in perpetuity, and so can anyone else, and (b) it sends a signal of sharing and generosity that is completely in keeping with the academic enterprise. People who want to reuse things I've put under CC licenses have invariably gotten in touch with me to ask permission, even though the CC license means that no further permission is required. I've realized that this cycle -- CC license, permission request, permission grant -- is a meaningful series of gifts in a gift economy of scholarship.
And by the way, for everyone else out there, why wait for tenure? The increased distribution of one's work that comes from open access seems likely to help in getting tenure. At any rate, it never hurts to ask the law review to see their copyright agreement and to ask about their willingness to go open access. You lose nothing by asking, even if you're not willing to take your article and go home over it.
Posted by: James Grimmelmann | Aug 13, 2010 6:55:24 AM
My understanding is that Yale University Press has an initiative to make electronic versions of some texts available via open access model (at the author's request, I believe) and the University of Michigan Press does the same. I don't know the details, but if someone is going to publish a book and would like it to be available via open access, Yale or Michigan are probably good places to look.
Posted by: Matt | Aug 13, 2010 7:01:30 AM
My experience has been consistent with James' -- I have kept the copyright to all of my articles, and the journals have an exclusive license for a relatively short period of time and a nonexclusive license thereafter. In most cases, the journals have suggested this arrangement. I haven't written a book myself, but I've seen a lot of book contracts, and my sense is that authors have had a more difficult time retaining copyright in books.
Posted by: Viva Moffat | Aug 13, 2010 11:40:30 AM
My experience has been that more and more law reviews are structuring their contracts be license-based rather than copyright-ownership-based. In other words, the contracts ask for specific licensing rights and keep the copyright with the author as opposed to transferring the copyright to the law review.
I believe, regardless of where the copyright ownership lies, all authors should retain the power to distribute electronic copies freely, license excerpts or copies for books, and make use of the work in educational settings.
This can be done either through a license (if you transfer for the copyright) or by keeping ownership of the copyright (although it's probably good to spell out these specific uses, because some law reviews use exclusive licenses from which these rights need to be carved out).
And I agree with Mr. Grimmelmann, don't wait until tenure! This should be done regardless of faculty status. Most law review probably won't care if you modify the contract as long as it grants them, one way or another, the authority to do two things: (1) publish in their own book, and in any reprints; (2) publish via electronic means, such as their own website and databases like Westlaw and LexisNexis.
Posted by: John Nelson | Aug 13, 2010 1:01:20 PM
I agree that it shouldn't wait until tenure to ask about this stuff, and I didn't mean to suggest that I have or that it's advisable to forbear from asking about this pre-tenure. The question about tenure simply arises in the context of a choice (one which I've faced): e.g., Law Review A ranked in the top 10 says, sorry, we won't switch our copyright contracts for you, but Law Review B (which is a "step" down the chain) says it will. What to do then? Post-tenure, that choice is a bit easier to make--though not necessarily for those inculcated in the ways of prestige-mongering.
Still raises the question of course: what exactly are we giving up when we sign those hegemonic copyright forms as opposed to the licensing forms? Has anyone ever been actually bothered by a publisher for a derivative work they wanted to create? IF it's the "principle of the thing," then what principle is it being vindicated when, even under the hegemonic copyright form, we still have the relevant freedom to post it on our personal website or in the bepress/ssrn repository?
Posted by: Dan Markel | Aug 13, 2010 2:40:51 PM
I presented a paper relevant to this discussion yesterday at the IP Scholars' Conference in Berkeley.
In the paper I explain that, despite common (mis)understanding and longstanding academic traditions, the work for hire doctrine creates an irrebutable presumption that copyright in faculty-created works vests initially in the employer-university. While a "teacher exception" may have existed at one time as part of the common law copyright of some states, the 1976 revisions extinguished it.
As a consequence, most universities drafted copyright policies which attempt to revive the function of the teacher exception by either (a) selectively disclaiming initial copyright ownership by drafting policies that narrowly define the "scope of employment" for purpose of that university (or department) or (b) drafting policies that purport to transfer copyright to the faculty-creator. I explain why both approaches fail.
The end result is that copyright transfer agreements are invalid because faculty can't transfer rights they don't own. This means that publishers, at least with respect to copyright, occupy a very vulnerable position while universities seem to hold be in an extremely powerful bargaining position.
There is a lot more in the paper ... but that's summarizes a few of the points most relevant to this thread.
For those of you who are interested, the abstract is here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1658703. A draft should be up on SSRN (and IPSC's site) within the week.
Posted by: Alissa Centivany | Aug 13, 2010 8:16:40 PM
I would hope from what's been said above that (a) things *are* improving, and (b) more and more law teachers, irrespective of tenure status, are seeking to retain copyright. I don't publish only in law reviews, but in the last decade I've encountered bad behavior by only law review (Tulane), which was unexpected because I'd already seen that they'd allowed one of their *own* faculty members to (visibly) retain copyright. So that piece instead appeared as the 'lead' article in a lower-ranked law review (St. Johns), and arguably gets less readership there than it might have in Tulane. But I think the principle that academics--especially *legal* academics, who should be more knowledgeable about this--should not sign over title to their creative work for endless use by profit-making corporations (Hein, Lexis, Westlaw) is a crucial one.
Posted by: David J. Garrow | Aug 14, 2010 8:36:12 AM
I do not believe it is impossible to draft a University policy to effectuate a "teacher exception" to work for hire. In fact, I question whether the work-for-hire rules for Copyright necessarily apply to professors.
I will be interested in reading the reasons you view University policies are failures when you post your paper, but count me as a skeptic. I think you're reading Copyright as too expansive; perhaps with a view that would make the RIAA and MPAA agree, but not necessarily the courts or legal practitioners.
Posted by: John Nelson | Aug 16, 2010 10:19:36 AM
Before I did the research, I shared the skepticism expressed by John and others. Copyright law may very well be too expansive in this area but I'm fairly convinced my reading of it is not. I encourage you to read and judge for yourself. As for whether the scholarly publishing industry equivalent of the MPAA and RIAA would agree with my position, I doubt it considering that I find them, at least with respect to copyright, completely powerless (hence the title of the paper). They also don't have a track record of supporting open access, the position I promote in this paper.
For those of you who are interested, the full paper "Paper Tigers: Copyright and Scholarly Publishing" is up on SSRN (finally): http://ssrn.com/abstract=1658703. It's a working draft and constructive feedback is appreciated.
Posted by: Alissa Centivany | Sep 5, 2010 11:52:54 AM
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