Copyright and licensing

Topic lead: Tom Olijhoek, Solange Santos, Andy Byers
Last updated: 13/06/2023

Copyright is a type of intellectual property, aiming to protect creative works. Academic articles are protected by copyright, and authors can decide how their work may be used, published or shared by readers and other researchers. When publishing via open access, authors can either retain copyright in their work and license it, or transfer copyright or commercial rights to a publisher. Open access journals are ideally placed to raise awareness of licensing options and to encourage authors to apply permissive licensing terms.

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 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. Fair use 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.

Notably, 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.

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