ACCUTE conference

Who Owns Copyright in What You Publish? Presented by Mark A. McCutcheon at #ACCUTE2019

The following is a talk presented at #ACCUTE2019 by Mark A. McCutcheon. The position argued is the author’s, not that of ACCUTE.

The question that titles this talk might seem at first like it has a straightforward answer: don’t you yourself own copyright in what you publish? The short answer is Yes—and No.

Copyright means the right to reproduce a given expressive work that’s been fixed in a material form. You can’t copyright an idea; what you can copyright is the material expression of that idea. Copyright is a legal mechanism that gives to the holder of this “right” in a work a limited monopoly to set the work’s price and to control its reproduction and distribution. In Canada, copyright is part of federal law. Copyright applies automatically: as soon as a work is created, it is automatically protected by copyright; there’s no need to register the work or record its production anywhere. Copyright lasts for a specified term: in Canada, copyright protects a work until fifty years after the death of its author. After a work’s copyright protection expires, the work enters the public domain, which is the name for the total corpus of works whose copyright protection has expired. In Canada, any work by an author who died in or before 1968—which is fifty years ago—is in the Canadian public domain. For example, some new entries to Canada’s public domain this year include John Steinbeck and Martin Luther King, Jr, both of whom died in 1968. However, the recently agreed-upon US-Mexico-Canada trade pact will extend this copyright term to seventy years after the author’s death: this change will wreak havoc on our public domain (and on several scholarly and publishing projects now in progress).

Recently, I made the mistake of doing the hypothetical math on when my own writings might enter the public domain. I don’t recommend trying this, any more than I’d recommend trying LSD and then Googling your own name—both make for a bad trip. But stay with me: if an educated guess suggests I might die in, say, the year 2051—and that’s assuming the climate crisis doesn’t annihilate us all much sooner—then under the soon-to-be-extended Canadian copyright term of “life plus seventy years,” my work would enter the public domain in the year 2121. Whether we consider this estimate in the harsh light of current climate science or the gentler light of copyright analyses that show most works need less than a decade, at most, to make whatever money they’ll make (Gowers 50)—let me ask you: doesn’t planning anything about one’s intellectual property estate for the year 2121 seem completely absurd?

The absurdity and the complexity increase when we consider that federal law is not the only regulatory context for copyright. For the most part, provincial legislation on postsecondary education defers to federal law on the matter of copyright ownership in works produced by university employees and students. One exception is Alberta’s Postsecondary Learning Act, which adopts a more business-like approach: it names the institution as the owner of intellectual property produced by university employees, unless otherwise designated by university policy or negotiated between the university and its employees.

Which brings us to the next regulatory contexts we need to consider: university policies and academic staff collective agreements. Alberta’s business-like postsecondary legislation has been effectively supplemented by university policies and collective agreements: most institutions in Alberta recognize the individual author of a work as its copyright owner. At the Universities of Alberta and Lethbridge, this recognition is articulated in their collective agreements; at the University of Calgary, it’s in university policy. Across Canada, almost all public universities recognize the author, not the institution, as the copyright holder in “literary works” (meaning articles, books, etc.), whether in policy or by agreement. Many policy and collective agreement documents frame their language with reference to academic tradition and values; some also cite academic freedom. For instance, the University of Victoria’s IP policy refers to both:

This policy is written within the context of a vital academic community and its values, which include openness, sharing of ideas, collegiality, curiosity-driven research and academic freedom. … In establishing this policy, consideration has been given to: the current thinking on IP within universities and at the federal level; the historical practices of this University; and the standards and traditions in diverse academic disciplines. (2)

And several universities also recognize students as the rights holders of the works they create. In fact, I could find only one university that doesn’t have language in either policy or collective agreement that names the creator as the copyright owner, and it turns out it’s my workplace, Athabasca University. I think this glaring difference has something to do with the university’s open character; some other universities’ policies, like Laurentian’s and the University of Manitoba’s, make exceptions for the institutional ownership of materials created for distance-education courses; and some universities, like Lakehead, claim institutional rights holding for all teaching materials. (In the latest round of bargaining at Athabasca U, the employer rejected the faculty association’s proposal to assert the creator as the rights holder.)

That some universities hold rights in teaching materials poses one exception to the national pattern of policies and agreements that affirm a creator’s copyright ownership. (Another more prevalent exception concerns patents, but that’s a whole other story: it’s a very different wing of intellectual property law, and one I’m not well versed in because patents aren’t really the currency of the realm of English literature studies.) But before you say, “Ha! Unlike those suckers at Athabasca, I own the copyright in my scholarly writings,” there’s yet another set of copyright regulations to consider: the contracts that journal publishers issue to academic authors. Most journal contracts demand that the author surrender copyright to the publisher. But journal publishers don’t actually need copyright in your work to publish it, they just need a non-exclusive license—in other words, they just need your permission. But by becoming the rights holder, a journal can both set the price on your work and earn all royalties from it. You’ve probably seen the journal article prices that journals post for general public consumption, they can be quite a lot of money; for instance, my most recent article, a 1200-word essay in the Taylor & Francis journal The Explicator, retails for $43 USD. And for consumption by professors and students, who have access to institutional library journal databases, publishers charge the institutions a lot, too; in 2016, the twenty-nine academic research libraries that are members of the Canadian Association of Research Libraries (CARL-ABRC) collectively paid $260 million for their journal database subscriptions.

This arrangement is rather peculiar to scholarly journal publishing. Scholarly book publishing tends to recognize the author as the rights holder, as do literary journals with respect to creative works like poems and stories. The rationale for this arrangement is that writing articles is part of the job for which tenure-track academics earn a salary, as is their peer reviewing of others’ articles. The upshot of this arrangement is that a lot of the work that goes into producing content for a scholarly journal is outsourced and done at no cost to the journal—which then also, usually, assumes copyright ownership of the content.

The Canadian Association of Research Libraries and the Canadian Association of University Teachers (CAUT) have published resources for scholarly authors on how to retain your copyright in journal articles. Just last month, the CARL released its updated “Canadian author addendum to publication agreement”: the idea here is that you ask the publisher to co-sign this addendum that lets you retain important rights for sharing and reusing your work. The CAUT has an advisory memo on retaining copyright in journal articles; although it’s over a decade old now, it still works as a good briefing on how journal publishing works and what’s at stake in retaining copyright in your writings. But has anyone here ever tried to actually negotiate copyright with a journal? I always try this, because I’m a copyright nerd and so I want to see what happens, but in my experience this is not something journal publishers are willing to do, at all; they tend to adopt a “take it or leave it” position: do you want your piece published or not? And to be honest I usually take it, because yes, I do want my piece published. A publication is, among other things, a crucial career-advancing instrument, a CV line for promotion and tenure purposes. And besides, I tell myself, there are other ways to share and reuse your work.

One way is to familiarize yourself with a given journal’s Open Access policy—and then with your institutional repository: the online archive, often operated by an institution’s library, where you can upload copies of your research articles for public access. Open Access, as defined by the Scholarly Publishing and Academic Resources Coalition (SPARC), means “the free, immediate, online availability of research articles coupled with the rights to use these articles fully in the digital environment” (“Open Access”). You can find out whether a journal has an open access policy, and if so what kind of open access policy it has, by searching for the journal in the SHERPA RoMEO database, which compiles the open access policies of journals that have them. These policies can vary widely; SHERPA RoMEO colour-codes them as follows: A green OA policy means the author can archive the draft, or the revision, or the published version (called “the version of record”); a blue policy means the author can archive the final draft or the version of record; a yellow policy means the author can archive the pre-refereed draft; and a white policy means, basically, no policy: the journal doesn’t allow archiving. To refer back to my Explicator article, that journal has a “green” policy: I can archive the final, post-refereed draft—but not the version of record. If I want to archive the version of record, this journal has a paid open access policy that would let me do so for a fee—a fee of $2950, to be precise.

This is a typical amount for a paid open access fee; I think publishers assume that those willing to pay such sums are drawing on institutional or national research funds, not paying out of their own pockets. And most institutions and research granting agencies have budgets or regulations for open access fees, although as in all other matters of research funding, there’s a vast difference between research funding in the Humanities and those in the STEM disciplines. But, personally, I think these “pay to play” schemes betray the ethos of open access and harbour real potential for opportunism and corruption; witness the explosion of predatory journals that promise open access, peer-reviewed publication—in exchange for exorbitant sums from authors.

So I’m always consulting the SHERPA RoMEO database, and I try to prioritize journals with decent open access policies as those to which I send my work. For example, an AU colleague and I co-authored an article about representations of unions in science fiction, and we had difficulty finding a receptive journal for this article until it was accepted by Topia: not only one of Canada’s foremost cultural studies journals, but an Open Journal Systems (OJS) journal that had a tolerable open access policy: our article appeared in 2016 and Topia’s OA policy meant the journal would open access to the article after two years. But then Topia got bought by the University of Toronto Press’ Journals division. UTP Journals has a “white” OA policy: it forbids all archiving, and it has substituted the OJS two-year paywall with a perpetual paywall. The change of Topia’s ownership also changed the publishing terms to which my co-author and I had agreed in the first place. You’d think such a significant change to those terms would oblige the journal to contact its contributors, but no. I found out when a visit to Topia’s old website redirected me to its new UTP Journals page, which informs us that the article is now “NO ACCESS” (yes, it actually says that): it’s only available via institutional access or individual purchase for $17.50 CAD. (If you have encountered similar changes of journal ownership and publication terms, I’d be curious to hear about them.)

For articles that get effectively confiscated by publishers’ “no access” policies like this, copyright law itself provides another way to reopen access to them: the statutory right called fair dealing. Fair dealing makes an exception to the rights holder’s monopoly on a work, a recognition that not all copying is infringement (Coombe et al 12). Fair dealing is not a creator’s right but a user’s right to copy or share copyrighted works, without the rights holder’s permission, for certain purposes, like teaching, research, criticism, reviewing, and parody. To be considered fair, a given use must satisfy a set of criteria such as the purpose of the use, the extent or amount of the use, and whether the use impacts the work’s sales (McCutcheon 76). For example, distributing a photocopy of one poem to a classroom would tend to be seen as fair, but posting a digital copy of a whole poetry book to a publicly accessible website (as Concordia got in trouble for doing in 2017) would tend to be seen as unfair. One way in which fair dealing has been brought to bear on “no access” scholarly articles is the development of a feature for institutional repositories called the “fair dealing button”: “the button appears on an [institutional repository] page…for a refereed article whose full text is deposited in the [repository] as closed access rather than open access. The button then makes it possible for would-be readers to request that the author email the eprint to them for individual research purposes” (Sale et al 190). That is, the fair dealing button facilitates one-to-one sharing, as allowed under fair dealing provisions.

There are other, related ways to facilitate one-to-one sharing of research articles. When I found out about Topia’s change of ownership, I tweeted about it and invited anyone interested to direct-message me for a copy of my article (and I got a few takers). A large-scale version of this approach is the #ICanHazPDF hashtag used on Twitter to request copies of articles that are inaccessible to the requesting user (maybe they’re paywalled, maybe the user’s an independent scholar, etc.). Then, another user who can access said article will e-mail it to the requesting user. This practice has been criticized as “piracy,” but as with so many other uses of that word, it doesn’t really apply. (It might more accurately apply to the Sci-Hub website, a scholarly Napster launched in 2011 that made some 50 million research articles freely available online.)

My point is that there are many interests vying for rights to your research, and many ways to assert or regain your own control over those rights. It’s important to know what the main regulatory contexts are—and what your options are. In particular, we should also think more about the language, in many of our institutions’ policies and agreements, that links copyright to expressive freedoms generally and academic freedom in particular. In the USA, jurisprudence has often brought freedom of speech to bear on limiting copyright’s reach; not so in Canada (Coombe et al 8). So how might we theorize the link between copyright, users’ rights, and academic freedom, in the service of making our work more accessible to the public, and thus (hopefully) better understood and better supported by it?

Works Cited

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