Copyright Assignment or License
5.6.5 Copyright Assignment or License
Typically, copyright of a work vests initially with the author of the work. As copyright owner, an author may transfer rights to a publisher by copyright assignment, exclusive license, or nonexclusive license.39,45 A broadly worded exclusive license may provide much of the same rights to publishers as would a copyright transfer agreement. Thus, an owner of an exclusive assignment (through either copyright transfer or broadly worded exclusive license) may produce derivative works and sublicense specific rights to others. Some publishers permit authors to retain certain rights to their works, even when assigning copyright or granting an exclusive license (such as making copies for educational purposes, posting a copy on a personal or institutional website, or depositing a copy in an institutional or other repository to comply with research funding requirements). Examples of a model copyright transfer and license for publication are available from the ALPSP.49 (Note: The ALPSP models include provisions for moral rights, which may not be covered for authors and journals under jurisdiction of US copyright law.) A nonexclusive license for publication permits a publisher certain rights to publish and disseminate work, but the copyright remains with the author who retains control over access, use, and distribution. Some open-access journals rely on nonexclusive licenses to publish such as those created by Creative Commons (http://creative/sciencecommons.org).
Publishers that have copyright or exclusive publication licenses may also grant others nonexclusive secondary-use licenses to use, reproduce, or disseminate content. A nonexclusive licensee may have a one-time right to reproduce a work in a specified manner (eg, permission to reprint or translate and distribute a specific article) (see 5.6.7, Copying, Reproducing, Adapting, and Other Uses of Content, and 5.6.10, Standards for Commercial Reprints and E-prints).
Publishers that make substantial investments in their products typically seek exclusive assignments from authors of written works.39,45 However, few visual artists or professional photographers will agree to such terms and more commonly grant nonexclusive rights to publishers who want to include their works. In addition, some institutions encourage or require authors to transfer nonexclusive or conditional rights of their work to publishers (see also “Exception—Institutional Owners of Copyright”). In such cases, a publisher must request permission from each author before republishing the work in any derivative format, and this could include the right to publish the article on the journal’s website. Journals that accept such limited conditional licenses need to be sure that they obtain licenses that cover all subsidiary rights that the publisher may want to exercise or sublicense (eg, online and licensed versions, reprints, e-prints, collections, and archival copies as well as versions in multiple languages and multiple types of media). Increasing demands by authors and their institutions and the increasing complexity of publishing models portend much future debate among authors, institutions, and publishers with regard to copyright assignments, licenses, and publication (see also 5.6.2, Open-Access Publication and Scientific Journals).
Common arguments in favor of copyright transfer from authors to publishers include the following:
▪ The publisher must have the opportunity to publish or license the publication of the work in other forms to recoup or justify the expenses associated with the editorial and peer review, editing and quality assurance, publication, distribution, and maintenance of the original work.
▪ The publisher, with business and legal expertise and resources, is better able to distribute and maintain the work in print and online, protect it from misuse and piracy, and take advantage of new technologies and media.
▪ The publisher is better equipped to invest in the work and take the risk that the work may not be successful.
▪ The publisher serves the author’s interest in self-promotion and professional advancement.
Common arguments favoring author’s retention of copyright include the following:
▪ Authors who retain ownership of their works and distribute their works themselves, through their institutions or libraries or other means, can help to limit the increasing subscription costs of scientific journals.
▪ Authors deserve to receive financial reward from both the original publication and any subsequent republication or dissemination.
▪ Authors' retention of copyright meets the traditional need for identification of intellectual ownership.
▪ New technology enables misuse and theft of intellectual property and obviates the ability of publishers to protect copyright, perhaps rendering copyright obsolete.
Written Assignment of Copyright or License.
As a condition of considering a work for publication, most publishers of scientific journals require authors to transfer copyright or an exclusive publication license in the event that the work is published. This requires authors to sign a specific license indicating the transfer of copyright or a license to the publisher. Since the transfer of copyright may not actually occur until the work is published, editors may choose to consider manuscripts submitted without a statement of copyright transfer or publication license from the author and then ask for it if a revision is requested or the manuscript is to be accepted. However, to simplify the submission process, JAMA and the Archives Journals request authors to submit a statement of copyright assignment when they submit their manuscripts. This statement is included in an authorship form that all authors must sign. In addition, each author must affirm that the work submitted is original and has not been previously published (see also 5.3, Duplicate Publication). These journals also require authors to identify their specific contributions to the work and to disclose conflicts of interest at the same time and on the same authorship form (see also 5.1.1, Authorship Responsibility, Authorship: Definition, Criteria, Contributions, and Requirements, and 5.5.1, Conflicts of Interest, Requirements for Authors; a copy of this form is available online in the JAMA instructions for authors at http://www.jama.com). In the event that the work is published by JAMA or an Archives Journal, the author agrees to transfer copyright to the American Medical Association (the owner of these journals). If the work is not published, the copyright remains with the author. JAMA and the Archives Journals require all authors (including each coauthor) who are not US federal government employees to sign the following copyright transfer statement:
Copyright Transfer. In consideration of the action of the American Medical Association (AMA) in reviewing and editing this submission (manuscript, tables, figures, audio, video, and other supplemental files submitted for publication), I hereby transfer, assign, or otherwise convey all copyright ownership, including any and all rights incidental thereto, exclusively to the AMA, in the event that such work is published by the AMA.
Assignment by Coauthors.
The authors of a joint work are co-owners of copyright in the work. To transfer copyright or grant a publication license in a joint work, the copyright assignment or license must be signed by each of the authors.
Exception—US Federal Government Works.
Because copyright does not vest in works created by the US federal government, no assignment from the author is necessary.14(§105) However, journals should obtain a signed statement from each author contributing to a work as a federal government employee. What constitutes a work of a government employee as part of the person’s official duties is not always clear, but generally, the application of the federal employee exception is determined by the nature of the author rather than the nature of the work or its funding. JAMA and the Archives Journals require all authors who contribute to a work as part of their duties as an employee of the US federal government to sign the following:
Federal Employment: I was an employee of the US federal government when this work was conducted and prepared for publication; therefore, it is not protected by the Copyright Act, and copyright ownership cannot be transferred.
When some authors of a joint work contributed as employees of the US federal government and other authors did not, each government-employed author must sign the federal employment statement and all other authors must sign the standard copyright transfer agreement.
Works created by authors of other national governments may be subject to the copyright laws of their respective countries.
Exception—Institutional Owners of Copyright.
On occasion, a manuscript from an author or authors from a single institution may be submitted with a copyright transfer or publication license and signed on behalf of the institution, rather than by the individual authors. The institution presumably has a written agreement with the authors, following the work-for-hire provision of the copyright law, that all work done while the authors are employees of the institution is owned by the institution. Accordingly a representative of the institution may transfer copyright or grant a publication license (see 5.6.4, Types of Works and Copyright Duration in the United States, Works Made for Hire).
Scientific journals should be cautious about accepting limits on copyright transfers or licenses from institutions or commercial entities that could remove the journal’s ability and authority to approve subseqent uses of a journal article, and the journal’s imprimatur of that article, for commerical or promotional purposes. Journals also need to avoid the possibility of commercial use of a work in a manner deemed unsuitable by the journal. For these reasons, JAMA and the Archives Journals do not accept any restrictions on the transfer of copyright, and all requests for reuse of a journal article must be submitted to the permissions department for review and approval.