copyright s relationship with open access - legislative framework that contextualizes oa policies...
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Palestra apresentada à CONFOA 2013 (Universidade de São Paulo, São Paulo, Brasil, de 06 a 08 de outubro de 2013) na Mesa II - Direitos autorais e acesso aberto - pela Sra. Victoria Owen - CANADÁ - Chief Librarian, University of Toronto Scarborough. Presidente da Comissão de Direitos Autorais e outras questões legais da IFLA (CLM).TRANSCRIPT
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
Victoria Owen 2012
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
Victoria Owen 2012
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
Victoria Owen 2012
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
Victoria Owen
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
Victoria Owen 2012
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
Copyright’s Relationship with Open Access cont’d
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
Copyright’s Relationship with Open Access cont’d
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
Copyright’s Relationship with Open Access cont’d
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