OA Policies and Traditional Publishing Agreements by Dr. Rumi Graham, Allan Bell and Mark Swartz
Lovett, Rathemacher
& Boukari, 2017 “permissions based OA policies make it legal to post author
manuscripts in the IR regardless of publisher policies”.
Harvard “Good Practices” website. Their OA policy is permission based, or an author-rights policy which is a non-exclusive licence to
publicly disseminate research between grantors (authors, departments), and grantee
(institution). The policy applies from that moment forward (prospective
application, author gives a portion of rights are transferred to the
institution and therefore cannot be completely transferred then to the
publisher), so that the peer-reviewed manuscript version can be retained following the waiver (policy waiver
for specific content). This policy acknowledges the important of “Rights retention” in OA policies.
But do we have a
reliable legal framework to protect these rights?
A legal
option:
A Rights Retention Open Access policy (RROA) is a non-exclusive agreement of an author or
co-author while at the institution. The policy grants
the university a non-exclusive right to archive, preserve, reproduce and
disseminate the work in any medium and authorize others to do the same.
No statutory provisions
in Canada like US, UK or Australia. Non-exclusive has no
property rights in copyright, only contractual rights
- there is no case law, just a legal analysis
- a tonne of assumptions
- extrapolating from the general principles of contract and property law and related to copyright
- courts are unpredictable
We need a case or
propose statutory provision(s). Copyright librarians need to constantly educate and inform
faculty about their past licence/copyright agreements and help them understand their options in the
future (preventing the subsequent licence). We need to protect all
parties (faculty, institution, publisher).
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