Decoding Contracts: Publication in the Shadow of Elsevier's Article Sharing Policy Kevin Anne Will

What is Elsevier Doing? Imposing embargos (up to 4 years) on all self- archiving in IRs – Personal websites can use post-prints immediately – CC BY NC ND license required Offering several mechanisms for short-term sharing through proprietary portals – Want to control the sharing environment

Copyright Transfer vs License The Contributor assigns to Wiley-Blackwell, during the full term of copyright and any extensions or renewals, all copyright in and to the Contribution, and all rights therein, including but not limited to the right to publish, republish, transmit, sell, distribute and otherwise use the Contribution in whole or in part in electronic and print editions of the Journal and in derivative works throughout the world, in all languages and in all media of expression now known or later developed, and to license or permit others to do so. In consideration of NPG agreeing to publish the Contribution the Authors grant to NPG for the full term of copyright in the Contribution and any extensions thereto, subject to clause 2 below, the exclusive licence (a) to publish, reproduce, distribute, display and store the Contribution in all forms, formats and media whether now known or hereafter developed (including without limitation in print, digital and electronic form) throughout the world, In consideration of the Publisher’s agreement to publish the Work, Author hereby grants license to Publisher the right to print, publish, reproduce, display, broadcast, edit, and distribute the Work, in whole or in part, throughout the world in all languages and by all forms now known or hereafter developed, including electronic format, and to market, sell or license the Work or any part of it as it sees fit.

Why Work for Hire is a New and Dangerous Approach You acknowledge that ASME has specially ordered and commissioned the Paper as a work made for hire and accordingly, ASME is the “author” of the Paper for purposes of copyright laws. If it is determined that the Paper is not a work made for hire, then you hereby irrevocably assign to ASME forever, as of the date of creation, all worldwide rights in the Paper, including all United States and foreign copyrights (and extensions of them), and all other proprietary rights in the Paper.

Why do it? Invalidates any effort to grant a license in the copyright prior to transfer (i.e., campus Open Access policies) Eliminates 35-year “termination” right. NB, OUP uses similar language for book chapters; slightly less absurd, but still disrespectful of authorship.

How can we fix this?

How Can You Share It? Think about what you want to be able to do Reuse portions of the work, such as illustrations? Allow you &your colleagues to use the work? – In the classroom, course management system and in other publications? Post on your website, an institutional repository, or a subject-specific repository?

Standard Scholarly Sharing Are you getting more rights than you already have under fair use? Are you getting fewer rights? If contract states rights that you already have, the terms aren’t a particularly good deal. – Not a bad thing, but don’t feel obligated

Sharing for Openness What version can you share? Is there an embargo? Do you understand what you can share? When you ask the publisher for clarification, do you have confidence in the answer?

A Confusing Contract Clause JoVE is and shall be the sole and exclusive owner of all rights of any nature, including, without limitation, all copyrights, in and to the Video. To the extent that, by law, the Author is deemed, now or at any time in the future, to have any rights of any nature in or to the Video, the Author hereby disclaims all such rights and transfers all such rights to JoVE.

What Did Authors Want to Do? Use outtakes and additional footage in other projects Modify video and use it for publicity and specialized training. “The authors, who are the creators of the raw video footage and photographs, retain the right to reuse and adapt these for subsequent non-commercial purposes such as staff training, educational outreach to various audiences and in educational outreach materials (websites, brochures, presentations).”

What If Things Go Wrong?

Who’s on the Hook?

“Indemnify” or “hold harmless” Warrant

How to Fix “ good faith ” “ reasonable ” “ subject to NC Tort Claims Act, G.S ”

Who Gets Home Court? Greetings from Zug !

§ 10 General Provisions This agreement shall be governed by, and shall be construed in accordance with, the laws of Switzerland. The courts of Zug, Switzerland shall have the exclusive jurisdiction.

How to Fix This agreement shall be governed by, and shall be construed in accordance with, the laws of Switzerland North Carolina. This agreement shall be governed by, and shall be construed in accordance with, the laws of Switzerland the defending party.

So Remember... Don’t Settle for the First Offer Nothing’s Written in Stone We’re Here to Help

Force Majeure Binding Arbitration Reversion Subvention Do I get any money?