Copyright in the Age of Digital Scholarship

Sharon A. Gutman

doi:10.5014/ajot.2011.000877

Sharon A. Gutman, PhD, OTR

At the 2010 American Occupational Therapy Association Annual Conference & Expo, a colleague witnessed his own lecture slides presented verbatim in another person’s workshop without author acknowledgment. My colleague had posted his slides, which were materials from a course he developed and teaches, to a university course repository. The workshop presenter likely accessed my colleague’s slides online, copied them verbatim, and now presented the material as her own. Although this incident is a clear example of copyright violation, legal practices guiding copyright ownership and protection have become muddled in the digital age by Internet access to almost all information. The relative ease of accessing and copying information has forced traditional copyright conventions to be reconsidered. In this incident, although copyright infringement is clear, no well-defined legal practice exists to secure damages for the rightful author.

The Copyright Act of 1976 automatically grants copyright ownership to the author of an original work that is expressed in a fixed medium, such as writing (U.S. Copyright Office, 2009). Although the law does not require authors to register copyright to secure protection, legal counselors often recommend that scholars—particularly those whose work can generate profit from the sale of books, workshop presentations, assessments, and clinical materials and equipment—should register for copyright (or patent when appropriate) within 3 mo of development of their work (Columbia University Copyright Advisory Office, 2009a). Copyright registration can be completed online at the Copyright Clearance Center for a minimal fee (www.copyright.gov). Without copyright registration, authors often find it impossible to collect damages in a copyright infringement lawsuit.

Authors of unpublished educational or clinical materials (e.g., lecture slides, course notes, continuing education materials, newly developed clinical assessments, and clinical practice manuals and protocols) should, at the very least, place a copyright notice on all work. This notice should contain the word Copyright or the © symbol, the year in which the work was created, and the name of the copyright owner (e.g., Copyright © 2010 by Edward Smith). Authors may consider adding a statement to restrict use of the work in question. Such statements usually specify that the work cannot be copied, distributed, or used in any way other than as originally intended without the author’s written permission. To assist others with securing permission, it is recommended that the author’s contact information (e.g., e-mail address or Web site link) be provided. Although placing copyright notices and restriction-of-use statements on all unpublished work is good practice, those practices alone may not be legally sufficient to secure statutory damages if copyright infringement has occurred (Keep Your Copyrights.org, 2010).

Statements specifying permitted use also help clarify how the work is intended to be used by others. If the work is intended for nonprofit educational and clinical use, the author may want to use a permission notice to eliminate the need to contact the author. For example,

Copyright © 2010 by Edward Smith, esmith@NMSU.edu. Permission is hereby granted to reproduce and distribute copies of this work for nonprofit educational purposes, provided that copies are distributed at or below cost and that the author and copyright notice are included on each copy. (Columbia University Copyright Advisory Office, 2009b)

Authors may also use a Creative Commons license to create a permission statement (Creative Commons, 2010). Creative Commons is a nonprofit organization that offers six standard licenses granting various degrees of permission to help authors license work to the public domain freely or with condition (see http://creativecommons.org/about/licenses).

How Authors Lose Control Over Their Own Work

Even when work is published and authors have signed copyright agreements, authors are in danger of losing control over their own work by agreeing to copyright contracts that are potentially harmful to future scholarship. For example, authors who have signed copyright agreements transferring copyright to the publisher may find that

They are forced to seek and pay for permission to reproduce and distribute one of their own articles for use in their own class;
They must seek permission to reprint and use, in part or whole, their own clinical assessment or manual; or
They have lost control over the use of previously published work that has been recently released, in part or whole, in a new book, by the same publisher, without credit or royalties to the original author.

Authors must understand the rights that they retain and release when signing copyright agreements with publishers. Fair copyright agreements allow authors to retain certain rights to use their work in future scholarship and for educational purposes and to facilitate access to their work by members of the scholarly community (Crews, 1993, 2001). Authors should seek the following rights when signing copyright releases and selecting publishers:

The ability to reproduce and share work for educational purposes
The ability to create derivative works, such as course materials and Web sites
The right to be credited as the author in all future publications of the work in part or whole
The ability to post the work to his or her university repository
The ability to post the work to open-access digital repositories either in an unrefereed preprint or refereed postprint version.

In response to scholars’ and researchers’ demands, many academic publishers are increasingly allowing authors to retain the right to use the content of their published work (in part or whole) in subsequent publications and scholarly projects. Securing a Hybrid Environment for Research Preservation and Access (SHERPA) is a nonprofit online service (www.sherpa.ac.uk) that provides information about copyright and archiving of online materials (SHERPA, 2006a). Rights METadata for Open archiving (RoMEO) is a subsidiary service of SHERPA that details the copyright policies of all publishers. Authors should use the RoMEO service to determine which publishers grant the most liberal author rights (SHERPA, 2006b).

The most recent version of the American Journal of Occupational Therapy copyright release agreement allows authors to reprint and use their own single articles for nonprofit educational purposes and to deposit postprint versions of their articles in their university repository. Authors whose research was funded by the National Institutes of Health are permitted to post their work to PubMed Central in accordance with government policies.

In addition to the previously mentioned list, authors are encouraged to do the following:

Maintain the copyright of all assessments and clinical manuals and grant permission to the publisher only to reprint such materials in a specific article
Transfer copyright to the publisher but negotiate to retain specific rights to use the work in future scholarship and educational purposes
Maintain all signed copyright agreements and do not depend on the publisher to do so.

The digital age has changed the way in which scholarship is accessed, shared, disseminated, and used by others. Although the ease of access to information posted to the Internet, online repositories, wikispaces, blogs, and Web sites has created an explosion of knowledge, digital access has also multiplied the ways in which scholarship can be exploited and authors harmed. Methods through which scholarly materials can be protected must be considered and acted on at the individual, departmental, and university level. This editorial is intended to provide basic copyright information; authors and occupational therapy departments are encouraged to seek further clarification and assistance from copyright and legal counsel at their universities.

References

Columbia University Copyright Advisory Office. (2009a). Copyright ownership. Retrieved September 13, 2010, from http://copyright.columbia.edu/copyright/copyright-ownership

Columbia University Copyright Advisory Office. (2009b). Your copyrights: How do I grant permission to others? Retrieved September 13, 2010, from http://copyright.columbia.edu/copyright/copyright-ownership/your-copyrights/

Creative Commons. (2010). License your work. Retrieved September 13, 2010, from http://creativecommons.org/choose/

Crews, K. D. (1993). Copyright, fair use, and the challenge for universities: Promoting the progress of higher education. Chicago: University of Chicago Press.

Crews, K. D. (2001). The law of fair use and the illusion of fair-use guidelines. Ohio State Law Journal, 62, 602–700. Retrieved September 13, 2010, from http://moritzlaw.osu.edu/lawjournal/issues/volume62/number2/crews.pdf

Keep Your Copyrights.org. (2010). Letting people know you have a copyright. Retrieved September 13, 2010, from http://keepyourcopyrights.org/copyright/letting-people-know

Securing a Hybrid Environment for Research Preservation and Access. (2006a). Mission. Retrieved September 13, 2010, from www.sherpa.ac.uk/about.html

Securing a Hybrid Environment for Research Preservation and Access. (2006b). SHERPA services. Retrieved September 13, 2010, from www.sherpa.ac.uk/index.html

U.S. Copyright Office. (2009). Circular 92. Copyright law of the United States and related laws contained in Title 17 of the United States Code. Retrieved September 13, 2010, from www.copyright.gov/title17/circ92.pdf