Copyright gives its owner the exclusive right to copy, distribute, adapt, display and perform a creative work, usually for a limited time. In the context of academic publishing, copyright is an essential concept, as it has long underpinned the traditional subscription model: in this case, publishers own the copyright of published work and are able to sell it via subscriptions or on a per-article basis. In recent years, the move to open access has challenged this approach, introducing decision points for journals and authors alike and a breadth of new business models (see Flipping a journal to open access).

The difference between subscription and open access journals

In the case of subscription journals, authors have two mechanisms to transfer copyright to their chosen publisher. The first option is called copyright assignment and consists in signing a contract that transfers the copyright from the author to the publisher (which may also be a learned society). The second option is to grant the publisher an exclusive licence to publish, whereby the author would retain copyright but give the publisher exclusive rights to publish and disseminate the work. In both cases, the publisher will handle reuse requests on the author’s behalf and protect the article by taking action if copyright is infringed or in cases of plagiarism.

When choosing to publish via open access, two possibilities exist. 

• Authors who keep their copyright choose a license and give the publisher the right of first publication. In this case, the authors will not be subject to the terms of the license chosen. Most frequently, journals opt to offer Creative Commons licences, which benefit from simplicity, standardisation and broad usage across scholarly communication.
• When authors transfer their copyright or their commercial rights, the publisher can choose a license which will also apply to the authors themselves. For example, if the publisher has chosen to publish using a CC-BY-NC license, the authors can no longer use their own work commercially.

Helping authors choose the right licence

Picking a licence is not easy, as awareness of the implications of licensing decisions on reuse rights is limited. Open access journals are ideally placed to raise awareness on this topic, as authors are asked to choose what licence to apply to their work as part of the publication workflow. Journals can provide guidance on their websites, too, and encourage submitting authors to use the Creative Commons License Chooser to identify the most permissive licensing terms that they are comfortable with.

Importantly, journals and authors alike should be aware that permissive licensing and open access publication are never compatible with statements such as ‘All rights reserved’. By definition, the application of a permissive licence waives some rights (depending on the licence), which makes an ‘All rights reserved’ statement meaningless and not enforceable. Creative Commons describe their own licences as “Some rights reserved”, as authors are given a spectrum of choices between retaining all rights and relinquishing all rights (public domain).

Fair use

Fair use is a crucial aspect federal American of copyright law that allows for limited use of copyrighted material without requiring permission from the rights holder. This legal doctrine serves to promote creativity, innovation and public interest by providing a balance between the rights of creators and the needs of users. In the US fair use is often applied in the context of use for scholarly purposes and classroom use..The U.S. applies a flexible doctrine of fair use, codified in 17 U.S.C. § 107, which allows limited use of copyrighted material without permission for purposes. Fair use there often applies in cases of criticism, commentary, news reporting, teaching, scholarship and research. To determine whether a particular use qualifies as fair, courts generally consider four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the potential impact on the market for the original work. It is also noteworthy that fair use in the US falls under federal law and is not different between various states.

The EU does not recognize a general fair use doctrine. In Europe the matter is not so straightforward and published research is very often  considered to be the property of the publisher in the case of non open access articles.

Instead, it provides a closed list of specific exceptions and limitations under the InfoSoc Directive (2001/29/EC). That include: use for teaching and research, quotation for criticism or review, use by libraries and archives.

Each EU member state may  implement these exceptions differently, and they are generally narrower and more detailed than U.S. fair use. One of the newer exceptions concerns Text and Data Mining (TDM)  under the Digital Single Market Directive (2019/790):mandatory exception is granted for TDM by research organizations and cultural heritage institutions and optional broader exception for general TDM if not explicitly reserved by rights holders. This is particularly important in view of the rise in AI.

The concept of fair use does not apply in Brazil and other regions in Latin america. In genral the use of copyrighted material here is allowed for edicational purposes, but exceptions exist in individual countries

Note that fair use does not apply to the reuse of open access materials. However, the inclusion of copyrighted contents as part of a published open access article may require authors and journals to be aware of this mechanism.