Re: Do PrePrints and PostPrints Need a Copyright Licence?

From: Michael Carroll <Carroll_at_LAW.VILLANOVA.EDU>
Date: Fri, 21 Oct 2005 11:56:34 -0400

   I want to address two points: (1) the utility of Creative Commons
licenses for open access and (2) the rules of copyright w/r/t pre-prints
and post-prints.

1. Creative Commons licenses.

Stevan Harnad wrote:

<<Self-archive and leave well enough alone. CC licenses are for other
purposes, not those of OA self-archiving of either preprints or
postprints. (E.g., they are fine for OA publishing.)>>

I disagree. Creative Commons licenses clarify and/or enlarge the
user's rights with respect to an article, whether that article is
published or archived online. [Disclosure, I'm on the Creative Commons
Board.] I agree with Stevan that self-archiving under terms that are
currently feasible (such as under a green publisher's copyright
agreement) is a desirable first step and should be done immediately.
But I do not agree that the long-term needs of open access have been
fully met by a self-archived article made available under such terms.

When a green publisher permits an author to post some version of the
article online, the publisher is silent about what rights the users have
with respect to the article. Copyright lawyers interpret the green
publisher's permission to the author as also the grant of an implied
license to the public. This implied license is important because nearly
every activity is what I call a "copyright event" because it implicates
the rights of the copyright owner. [For more on this concept, see]

But the scope of the implied license that a green publisher grants to
the public remains fuzzy. Does the reader have a right to make a RAM
copy of the article in order to read it? Probably. Does the reader
have a right to print the article or save a copy to her hard drive for
personal use? Probably. May the reader print out 50 copies and
circulate them at a conference on the theory that each attendee could
have printed out an individual copy? Hard to say. May an institutional
repository repost a copy found on an author's personal web site?

A Creative Commons license answers all of the above questions expressly
and in the affirmative. The cause of open access is well-served when an
author retains sufficient rights to grant a Creative Commons license and
does so. But for the time being, it is better than an author with the
limited rights that a green publisher has granted exercise those rights
by self-archiving today. We can leave for another round what steps
authors, their employing institutions or their funders might take to
ensure that authorshave the right to grant a Creative Commons license
to the public.

2. Pre-prints/Post-prints.

This thread got started by the suggestion that a Creative Commons
license could be attached to a pre-print even though the author has
transferred all copyright interest in the article to a publisher. The
posts from Charles Oppenheim and Steve Hitchcock below correctly state
the issues. Although technically distinct, the copyrights in the
pre-print and the post-print overlap.

The important point to understand is that copyright grants the owner
the right to control exact duplicates and versions that are
"substantially similar" to the copyrighted work. (This is under U.S.
law, but most other jurisdictions similarly define the scope of
copyright). A pre-print will normally be substantially similar to the
post-print. Therefore, when an author transfers the *exclusive* rights
in the work to a publisher, the author precludes herself from making
copies or distributing copies of any substantially similar versions of
the work as well.

[For example, the singer John Fogerty of Credence Clearwater Revival
fame was sued by a record company, which had acquired the copyright in
his song "Run Through the Jungle". The company claimed that Fogerty's
later song "The Old Man Down the Road" was substantially similar to the
former song and that Fogerty had therefore infringed the copyright that
Fogerty had signed away.]

Consequently, whether an author may grant the public a Creative Commons
license depends upon the rights the author has at the time of the grant.
As Charles Oppenheim notes, if the author grants a Creative Commons
license in the article prior to transferring copyright to the publisher,
the publisher takes the copyright subject to that license. But before
doing this, authors should read the terms of the publication agreement
they are signing. Some of these agreements call upon the author to
declare that no prior licenses have been granted.

Even when the agreement has such a provision, however, publishers will
sometimes agree to take the copyright subject to a previously-granted
license. For example, every researcher who accepts money from NIH or
any other U.S. government agency grants to the U.S. government a
non-exclusive license to publish and reproduce the work. This license is
granted prior to any agreement that the author enters into with a
publisher and therefore published papers funded by NIH research are
subject to the USG's license. Publishers are fully aware of the
government's license and therefore the terms of any copyright agreement
signed by a USG-funded researcher that purports to give all rights to
the publisher has to be interpreted accordingly.

With that background, let's return to the original question. Once an
author signs a publication agreement, can that author grant a Creative
Commons license in the pre-print? It depends upon the terms of the
agreement, as modified by any addendums. Currently, under most
publication agreements, the author does not retain sufficient rights to
grant a Creative Commons license in either the post-print or the
pre-print after transferring copyright to the publisher.

Of course, the author retains the right that all members of the public
have to make a fair use of the article or exercise a fair dealing
privilege, but it is unclear whether this privilege would permit posting
of the pre-print without authorization from a publisher that owns the
copyright in the post-print.

All the best,

On Mon, 17 Oct 2005, Charles Oppenheim wrote:

> If I offer something under a CC licence and then subsequently agree
to a
> more restrictive publisher's licence, I have set up an
> The earlier licence over-rides the second. In other words, any
> more restrictive licence with a publisher would have no validity and
> would be unenforceable by the publisher. Mind you, the publisher
> be perfectly entitled to be annoyed with the author, and may refuse
> publish the article and/or refuse to ever have dealings with that
> again in the future.

On Mon, 17 Oct 2005, Steve Hitchcock wrote:

> Roger Clarke proposes that a Creative Commons (CC) licence or similar
> self-archived preprints and postprints; Stevan Harnad suggests that
such a
> licence would be a good idea for self-archived preprints only.
> makes clear exactly why this would be a good thing. Stevan says it is
> *protect* it (the preprint) until the final postprint is ready". But

> protection isn't the purpose of CC licenses. Protection is vested
with the
> author of a new work in implicit copyright, and self-archiving does
> remove that protection. The issue is that authors of self-archived
> typically want to allow users more rights, and to state something to
> effect.
> This recent article by an admitted non-expert on CC may be helpful to
> in seeking similar enlightenment:
> "Creative Commons is actually more about protecting the audience
> hoping will use your work than it is about protecting you. You still
> on to whatever rights you reserve, but you're abandoning some of
> rights on purpose."
> Does Creative Commons free your content?
> To be fair, Roger Clarke makes this point too, but while his main
> seems to be on the position regarding rights transfer to a publisher,
> not sure whether in this situation a CC licence is necessary or
> since it may be a complicating factor.
> In Roger's First Monday article the 'process envisaged' in the role
of the
> copyright licence through pre-publication, review and formal
> reaches this point re. the publisher:
> "Irrespective of which approach the publisher adopts, the copyright
> arrangements in respect of the final version of the article do not
> the (possibly many) existing licences relating to the (Pr)ePrint. Nor
> they affect the ongoing availability of the (Pr)ePrint and of
licences in
> relation to it. They may, however, preclude the provision of later
> of the work, and in particular of the version that is to appear in
> refereed venue."
> Someone with more legal expertise than me could comment on whether it
> correct to say that the copyright arrangement with a publisher *does
> affect the existing (e.g. CC) licences relating to the (Pr)ePrint.
Since it
> is likely to be more restrictive then it seems to undermine the point
> any prior licence.
> There are good arguments both for CC licences and, to avoid
disrupting the
> path to publication, for sticking with typical publisher licences
> to allow self-archiving) for postprints. Stevan's position, partly
> here, has always been that CC licences are optional but unnecessary
> self-archived works that are intended for publication. That would
appear to
> remain a reasonable recommendation until there is greater clarity
> what authors of self-archived papers want to achieve with their
> rights in this new age of wide online dissemination, and
clarification of
> the legal position of rights statements regarding successive versions
> derivative works.
> Steve Hitchcock
> IAM Group, School of Electronics and Computer Science
> University of Southampton, SO17 1BJ, UK
> Email:
> Tel: +44 (0)23 8059 3256 Fax: +44 (0)23 8059 2865
> At 20:23 16/10/2005, Stevan Harnad wrote:
> >As Roger Clarke's email form letter to Repository Managers is being
> >circulated quite widely, I would accordingly like to make these
> >and suggestions publicly:
> >
> >(1) For the unrefereed, unpublished preprint, it is a good idea to
> >as Roger recommends: to adopt some form of provisional Creative
> >License rather than just putting it "nakedly" on the Web when
> >it.
> >
> >
> >
> >(2) This does not apply, however,, to the final, refereed,
> >published draft (the postprint), which is published in a journal,
> >will have its own copyright transfer agreement, signed with the
> >and which is the primary target of the Open Access movement.
> >
> > "Apercus of WOS Meeting: Making Ends Meet in the Creative
> >
> >
> >Now some comments:
> >
> >On Sun, 16 Oct 2005, Antonella De Robbio wrote:
> >
> > > Dear Stevan
> > >
> > > I received this mail below from Roger Clarke, a Visiting
Professor in Info
> > > Science & Eng Australian National University, Visiting Professor
in the
> > > eCommerce Program, University of Hong Kong and also Visiting
Professor in
> > > the Cyberspace Law & Policy Centre Uni of NSW.
> > > I haven't yet reply to him because I have been away and precisely
I have
> > > been as Italian delegate at UNESCO 33.rd general conference where
we have
> > > presented an Open Access resolution as Italian UNESCO
> > > Well, I am leaving for Geneva at OAI4 next days where I will
organise the
> > > first E-LIS conference too, at the end of OAI4 event.
> > > I think we must reply to this professor, and so I thought you are
the best
> > > OAIperson who can do it.
> > > I will answer to him too, later, when I will come back to my
> > > in Geneva.
> > > Please look at this letter, he refers to some his articles on
> > > and others..
> > >
> > > If you reply please put me in cc, so we could be coordinate in
> > > actions.
> >
> >My replies appear below:
> >
> > > Thank you!
> > > Antonella De Robbio
> > > E-LIS manager
> > >
> > > ---------- Forwarded message ----------
> > > From: Roger Clarke <Roger.Clarke AT>
> > > To:
> > > Subject: PrePrints and PostPrints Need a Copyright
> > > Licence
> > >
> > > Dear ePrint Repository Manager
> > >
> > > The OA/ePrints/Repository movement is very important, and
> > very well.
> > >
> > > But there's a gap in the strategy.
> > >
> > > When an ePrint is downloaded, it's likely that an implicit
> > > licence comes into existence. There's a lack of clarity about
> > > terms that courts might infer to be in such a licence. And
> > > dangerous.
> >
> >It's not *terribly* dangerous, and courts have not much to do with
> >Physicists
> >and computer scientists have been posting "naked" papers online for
over a
> >decade
> >and a half (hundreds of thousands of papers) with no problems.
> >
> >But for the unpublished, unrefereed, not-yet-copyright-protected
> >preprints, it is
> >a good idea to adopt one of the Copyright Commons Licenses to
protect it until
> >the final postprint is ready, accepted by the journal, and
> >covered by the journal's copyright agreement.
> >
> >
> >
> >It is somewhat misleading, though, to say that "eprints,"
generically, need a
> >separate license: The preprints do, the postprints do not.
> >
> > > In a paper published in First Monday in August 2005, I analysed
> > > requirements for a copyright licence for Pre-Prints. I took care
> > > balance the interests of authors, journal-publishers, and the
> > > public. Details of the paper are below.
> >
> >I have read the paper, and most of it is not pertinent to published

> >postprints.
> >
> > > In a further short paper, I've now extended that analysis to
> > > Post-Prints as well. Details of that paper are also below.
> > >
> > > I'd like to submit a recommendation to the 'peak body' of ePrint
> > > Repository Managers; but I haven't been able to find such an
> > > association.
> > >
> > > So I'm approaching each ePrint Repository Manager directly, with
> > > following suggestions:
> > > - recommend to authors that they make this licence-type
> > > for all PrePrints and PostPrints;
> >
> >Recommendations for naked preprints are welcome, but the postprints
> >already
> >covered by publisher copyright.
> >
> > > - provide guidance and support to authors to enable them to do
> > > with a minimum of effort; and
> >
> >The guidance should clearly state that this is only pertinent to the

> >unpublished
> >preprint.
> >
> > > - consider making the availability of this licence-type a
> > > for all papers placed in repositories.
> >
> >As the primary target to Open Access Institutional Repositories is
> >not unrefereed preprints but published postprints, the license
> >certainly not be incorporated as a default option. It will only
> >confusion in the case of the postprint, with the agreement already
> >with the publisher.
> >
> > > Clarke R. (2005) 'A Proposal for an Open Content Licence for
> > > Research Paper (Pr)ePrints' First Monday 10, 8 (August 2005),
> > >
> > >
> > > The Post-Print of the paper is at:
> > >
> > > The Pre-Print of the paper (of 1 May 2005) is at:
> > >

> > >
> > > Clarke R. (2005) 'A Standard Copyright Licence for PostPrints'
> > > Xamax Consultancy Pty Ltd, 26 August 2005, at
> > >
> > >
> > > Creative Commons - Attribution-NonCommercial-NoDerivs 2.0
> > > US -
> > > and its equivalents, e.g.
> > > UK -
> > > FR -
> > > AU -
> >
> >These CC licenses are not applicable to articles that are already
> >a publisher's copyright agreement. Nor should anyone imply -- at a
> >when self-archiving of postprints is still only at 15%, even though
> >of journals already endorse postprint self-archiving, and 23% more
> >preprint self-archiving -- that the postprint author need do
> >more than self-archive his postprint. Authors don't need more
> >nor more worries (they are already needlessly worried about whether
> >they may self-archive at all). Nor should they be advised
> >that in order to self-archive their postprints, they need to
negotiate a
> >different copyright agreement with their publishers. Nor should
> >licenses be applied to their preprints that might contradict the
> >agreement that they will be signing for their postprints.
> >
> >In general, copyright is a red herring for Open Access. Yes, make
> >your text
> >is copyright-protected while it's a preprint, but the postprint has
no more
> >copyright problem if it is self-archived than it used to have when
it was not.
> >That is what the copyright agreement with the publisher is for.
> >
> >See the eprint self-archiving FAQ items on copyright:
> >
> >
> >
> >Stevan Harnad
> >
> > > Other national licences are at:
> > >
> > >
> > > --
> > > Roger Clarke
> > >
> > > Xamax Consultancy Pty Ltd 78 Sidaway St, Chapman ACT 2611
> > > Tel: +61 2 6288 1472, and 6288 6916
> > >
> > >
> > > Visiting Professor in Info Science & Eng Australian National
> > > Visiting Professor in the eCommerce Program University of
Hong Kong
> > > Visiting Professor in the Cyberspace Law & Policy Centre Uni
of NSW
> > >

Michael W. Carroll
Associate Professor of Law
Villanova University School of Law
299 N. Spring Mill Road
Villanova, PA 19085
610-519-7088 (voice)
610-519-5672 (fax)
Research papers at

See also
Received on Sat Oct 22 2005 - 18:21:39 BST

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