The scholarly publishing environment is rapidly evolving in ways that present both early scholars and established scholars with more options and more decisions. Traditionally, all scholarly articles and books were published after a peer review process, an editing, and copyediting process, and they were distributed by publishers in the position to print and make high quality scholarly works available to the world. The international copyright system was established in the 18th century to support the growth of the publishing industry that succeeded in producing the vast numbers of books and journals held in libraries across the world.
In the 21st century, traditional publishing practices support the creation and distribution of high quality academic literature, as they have for centuries. The publishing landscape has also seen the rise open access publishing made possible by the ready availability of technology to accomplish the publishing and distribution of scholarly works. Open access publishing allows for works to be read and used by more people across the globe.
Many publishers have embraced new models of scholarly publishing to accommodate open access in the 21st century for both books and scholarly articles. Universities today also promote the opportunities afforded by open access to books and scholarly journal publications by adopting open access policies and by supporting open access publications. In addition, self-publishing of works has become a viable option for some scholars interested in taking a more independent approach to distributing their works.
In recent years we have also seen the rise of national government policies supporting open access to publications created from taxpayer-funded research, and open data policies. All these forms of open access are based on compliance with copyright law and other applicable law and are not intended to undermine intellectual property rights. They are also not intended to violate publication agreements which an author signs with a publisher. For this reason it is important to understand publication agreements: what they allow and how they function alongside open access policies.
Scholars face a different decision-making process today than they did in the past. Because you hold the copyright in your original scholarly works, you have the right to make those works publicly available in the manner and at the time you choose. The decisions you make in publishing your works-- which publisher to choose, whether the work will be made available in a traditional manner or as an open access publication, or both, when your work will first be made available to the public lawfully, and whether to consider self-publishing-- have a greater impact on distribution of and access to your works than ever before.
Publishing with traditional publishers
Most scholars continue to work with traditional journal publishers and book publishers who provide well-established production and distribution services. Many publishers today will offer scholars options for making their works available through traditional business models or through open access models. These options are available to you when you sign publication agreements. Your responsibility as an author is to read your publication agreements carefully, understand them, make careful decisions in negotiating them, and retain copies of them for future use.
Retaining your copyright or transferring it to a publisher
Some publishers require an author to transfer his or her copyright as a condition for publication, while others sign nonexclusive licenses with authors for the right to first publish the author’s work. Sometimes authors are able to negotiate with publishers on this point and sometimes it is not possible. Retaining copyright rather than transferring to a publisher may leave the author with more flexibility with respect to future uses, but even if copyright is transferred to a publisher, significant flexibility may be built into the publication agreement.
If an author wishes to retain his or her copyright, this must be part of a negotiation process with a publisher. Tools such as an authors’ addendum may be helpful in articulating negotiation points. The BTAA Author’s Copyright Contract Addendum is an example.
Even when copyright transfers are part of publishing agreements, it is often possible to negotiate rights to enable your future uses of your own works for scholarly and teaching purposes. Authors may wish to negotiate with publishers for rights to use, reproduce, distribute, display, perform, create derivative works from, revise, or republish their works, for:
- One’s own teaching
- Professional presentations
- Sharing with professional colleagues
- Depositing a version of the work in an institutional digital repository, such as SOAR/RUcore at Rutgers
- Institutional uses
Your scholarly publications: use of third party works
Whether you are publishing in a traditional or an open access publication, when using works created by others, it is your responsibility to ensure that your use falls within the scope of the fair use exception or within the terms of any license associated with the work. If the license does not permit the use, or if your use would be considered to exceed the scope of the fair use exception, then you may need to obtain permission from the copyright holder to use the third-party work in the scholarly publication. If you are publishing in an international journal, it is more likely that permissions may be necessary to comply with the copyright laws of other countries.
Publishers set their own policies for requiring copyright permissions. Publishers have legitimate concerns about global access to copyrighted works and liability resulting from possible infringement. Publishers often require the authe to obtain permissions for uses deemed to exceed fair use. For example, it is common for publishers to require that permissions be obtained for use of photographs and other images taken from previously published works or taken from archives. It is generally the author’s responsibility to obtain permissions for uses when the publisher requires them.
Permissions may be obtained from the copyright holder directly. This may or may not involve payment. The Copyright Clearance Centerand another collective management organizations offer permissions services for works they manage. For international works, IFRRO is the main international network of collective management organizations that facilitates permissions for copyrighted material. It is sometimes difficult to obtain images for older works, works of small publishers, works of publishers that no longer exist, and many types of foreign works. Authors need to be prepared for this.
Authors also need to be aware that most archives do not hold copyright in most of the materials they hold. Archives collect materials to preserve and provide access to them but generally do not hold the copyrights. They typically advise scholars that it is their responsibility to obtain permissions that may be required to use works for purposes other than private study, scholarship, or research, or in excess of fair use.
In some cases, when a work that an author wishes to copy and include in a scholarly publication is very old or when efforts to identify or locate a copyright holder on such a work fail, a publisher may accept evidence of reasonably diligent search for the copyright holder in lieu of permissions. If a publisher agrees to this, the author will need to compile evidence to show that there is no known rightsholder to contact for permission. But ultimately it is the publisher’s decision whether to allow third-party copyrighted works to be included in the scholarly publication if obtaining permissions is not possible.
Authors should be aware that it is a common practice for publishers to require that authors indemnify them concerning use of third-party copyrighted works. This means that the liability for an infringement would rest with the author.
In cases where it is not possible to obtain permission, or even to identify or locate a current copyright holder, an author may be forced to forego use of a particular work or image that he or she had hoped to include in the publication. When this happens it is regrettable, but researchers need to be prepared for the possibility.
Many traditional publishers of scholarly journals now offer new models of scholarly publishing to accommodate open access, allowing for broader distribution of journal articles. Some publishers also offer open access publishing for books.
- “Hybrid” journals
Many traditional scholarly journals now offer an open access option, often involving a fee paid to the publisher, commonly referred to as an article processing charge (APC) or author publication fee. If the author chooses the open access option and pays the required fee, the individual article will be made available as an open access article. In hybrid journals, articles that are not selected under the open access option are available through standard subscription or sale only.
When an author chooses for his or her article to be published as an open access article in a hybrid journal, the publisher has the legal right to make it available broadly to the world under the conditions of the publication agreement. The SHERPA/RoMEO Publisher Copyright Policies & Self-Archiving database provides links to publisher copyright policies that detail publication options for various journals.
- Fully open access journals
Fully open access journals offer even greater possibilities for global accessibility of copyrighted works. Fully open access journals generally operate on the basis of non-exclusive licenses with authors who retain their copyrights. Open access journals may charge an article processing charge (APC). When an author publishes in an open access journal, the publisher has the legal right to make the article available broadly to the world under the conditions of the publication agreement.
A list of open access journal publishers may be found in the Directory of Open Access Journals. This is an online directory that indexes and provides access to high quality, open access, peer-reviewed journals. Rutgers University Libraries publishes a number of open access journals through the Rutgers Open Access Journals site.
- Self-archiving in open access repositories
Many scholarly journal publishers allow authors to self-archive versions of their scholarly articles in institutional or subject-based open access digital repositories, allowing for a parallel distribution of articles: one by the publisher and another through an open access repository. The publisher final version (usually a pdf) is distributed by the publisher, while the open access version, usually called the author’s final version and in manuscript form, is permitted by the publisher to be made available in a digital repository either immediately or after an embargo period.
When selecting a publisher, you may want to review publisher policies on self-archiving to assess your possibilities if you are interested in open access options. The SHERPA/RoMEO Publisher Copyright Policies & Self-Archiving database provides summaries of publisher policies on self-archiving and indicates which version of your work publishers allows you to post to an institutional repository or on your own website.
You may also consult publisher websites directly for author self-archiving policy. The publisher sites are usually more up to date and more detailed.
Universities encourage deposit of authors’ versions of scholarly journal articles in open access digital repositories when this is done lawfully and following established practices to ensure that there are no copyright, contract, or other legal violations. This means that deposit is consistent with publisher policies and with the publication agreement.
Rutgers provides information on open access in its website on Scholarly Open Access at Rutgers (SOAR). The SOAR portal site was developed in connection with the implementation of the Rutgers Open Access Policy on September 1, 2015.
- Open access books
Self-publishing of works has become a viable option for some scholars interested in taking a more independent approach to distributing their works in an open access framework. Publishers and university publishers are also developing open access book programs and open textbook programs. The Directory of Open Access Books indexes academic, peer reviewed, open access books that are made publicly available under various types of licenses. The license terms associated with each book display as a link.