Copyright s relationship with open access - legislative framework that contextualizes oa policies and practices

Copyright’s Relationship with Open Access ~

Legislative Framework that Contextualizes OA Policies and

Practices

Victoria Owen MLS, LLM (IP)

Chief Librarian, University of Toronto Scarborough

Chair, IFLA - Copyright and Other Legal Matters

4th Annual Lusophone Open Access Conference

São Paulo, Brazil

October 7th, 2013

How does copyright law relate to Open Access?

Does copyright support or oppose OA?

• Approach it from the legal side

• Look at applicable laws from the perspective of

the academic

What are your rights in the scholarship and learning

tools that you have created?

• Under the law

• Through your University

• In Open Access

Framing your intellectual property (IP) rights

What is the context for your rights?

What do you want to achieve with the dissemination of

knowledge?

National context – Copyright legislation Everything that applies to copyright is in the Act

Copyright’s balance* a. Public interest goal - Reasonable access to works for the benefit to

society

b. Private interest goal – Rewarding creators

The Act enshrines sets of rights that apply to all protected

works

Copyright Basics

Victoria Owen 2012

Authors create works.

They hold rights in the works, limited time (life + 50 [or

70 or…] years).

There are limitations and exceptions to authors’ rights in

most jurisdictions*.

There are penalties for infringing the rights of the

authors.

Essence of copyright

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Economic Rights*

1. Produce or reproduce, translate, perform,

publish, adapt, communicate…

Moral Rights - in some jurisdictions

1. Integrity of the work, association with the work

Users’ Rights*

1. Use of works do not require permission

1. Under the law: three sets of rights

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S. 3 of Copyright Act - Copyright in works

1. 3. (1) For the purposes of this Act, “copyright”, in relation to a work,

means the sole right to produce or reproduce the work or any substantial

part thereof in any material form whatever, to perform the work or any

substantial part thereof in public or, if the work is unpublished, to publish

the work or any substantial part thereof, and includes the sole right

…/

Economic rights in works

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1. To produce, reproduce

2. To perform in public

3. To translate

4. To convert from one type of work to another

5. To make sound recordings or cinematographs

6. To communicate by telecommunications

7. To present at a public exhibition

8. To rent computer programs

9. To sell or transfer ownership of a tangible object

10.To authorize any of the above noted rights

Author’s economic rights

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2012

Author / creator

Assignable – usually to publisher

Only one owner of copyright at a time *

Ownership of rights

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Recall the carve out for unsubstantial takings

Exceptions and limitations to copyright

Fair dealing, educational institutions & LAMs

S.29

1. Fair dealing

a. Research and private study

b. Criticism and review

c. News reporting

d. Education

e. Parody and satire

Users’ rights

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2. Under the University: e.g. U of Toronto’s Copyright Policy

• Determines the ownership of works

Defines Instructional Software – “designed for instructional

purposes that provides for interaction with the user, or makes

use of multi-media products, or both, and includes technology

enabled learning products in electronic format.”

Rights in instructional works undertaken by teaching staff and

librarians are not deemed to be undertaken in the course of

employment and are owned by the author

Extraordinary provision of resources by the University

• invokes a special clause giving the University the

rights to revenue, according to the policy, and

• Perpetual, irrevocable, royalty-free, non-exclusive

license to use, revise and modify the work for

research and teaching purposes

• Provide this information up-front to the University

Policy - Substantial use of University’s Resources

According to the law and the University policy, you own

the rights in your work.

If you do nothing all the rights are reserved. You will have

to deal with every request for use – or not have the

work widely used

The education mission allows for a different approach

to works - universities espouse wide dissemination and

attribution of works.

How will you manage your rights?

Consider that open access (OA) literature is digital, online,

free of charge, and free of most copyright and licensing

restrictions.

You retain your copyright. You make decisions about access.

“OA is compatible with copyright, peer review, revenue (even

profit), print, preservation, prestige, quality, career-

advancement, indexing…

The primary difference is that the bills are not paid by readers

and hence do not function as access barriers.”

*UTSC project Bioline International – servers in Brazil

3. Open Access provides another option

Copyright’s Relationship with Open Access

Open Access

Removes price barriers

Permission barriers

Free of charge

Determine flexibilities for

commercial re-use,

derivative works

Copyright

Creator owns rights and can

assign

Publisher will arrange

permissions and fees

Publisher determines price

and permissions for re-use

and derivatives

Copyright’s Relationship with Open Access cont’d

Open Access

Freely available on the

internet, to read,

download or mine data

Immediate access in Gold OA

No legal, technical or

financial barriers to use

Copyright

Limited browsing, abstract

only

Behind pay wall, available

through purchase

Embargo period before

adding to IR

Legal restrictions and

financial barriers


Open Access

Access based on consent of

© owners for new works or

if in public domain

Lawful access –

unrestricted copying,

reading, sharing, printing,

downloading

Adhere to moral rights of

association

Copyright

Wide dissemination would

require copyright reform to

permit use for research,

education, fair dealing, etc.

Option to use Creative

Commons licenses

May recognize moral rights


Open Access

Use does not infringe

No royalty fees

Write for impact, advance

knowledge and career

Copyright

Uses beyond exceptions

infringe

Royalty fees

Payment expected by non-

academics


Open Access

Covers any digital content,

data sets, raw data

Covers dissemination of

publicly-funded research in

some jurisdictions

Copyright

Works of ‘creative expression’

covered by © Facts and

information are not

protected

L&Es represent the public

interest/balance in ©

Society’s benefit from the

government’s grant of the

limited monopoly of ©

Sub-Groups of OA

Gratis OA

No price barrier

Carries copyright and licensing restrictions

Limit takings consistent with the law (L&Es)

Libre OA

Removes price barriers and some other restrictions

Allows use beyond fair use

Copyright has a dual purpose – the dissemination of

knowledge and the protection of the rights of the

creator.

Open access is compatible with many facets of copyright

law. The main areas of divergence relate to economic

rights and users’ rights.

Copyright’s Relationship with Open Access

Thank you.

Victoria Owen, MLS, LLM (IP)

Chief Librarian

UTSC Library