Re: Can an Author Post His Article Published in a Journal on His Web Site?

[Kevin L Smith <kevin.l.smith@xxxxxxxx>]

OK Marc, I will offer a few thoughts and objections to what you have 
written.

I have not seen, I don't think, a publication agreement from WSU Press, 
but the ones I have seen from most journal publishers (which was the 
context of the original question) do not explicitly exclude fair use. 
Simply assigning all rights to a publisher does not, in my opinion, 
exclude fair use because fair use is not one of the assignable rights held 
by a copyright owner.  It is an affirmative defense available to anyone 
regardless of the rights they hold in any specific work.  The status of 
having once held a copyright and then assigned it to another does not 
affect one's position vis-a-vis fair use.

The "clickwrap" contracts that Walden discusses are much more explicit in 
ruling out fair use than most publication contracts I have seen.  In those 
cases I am inclined to disagree with Walden and find the reasoning of 
"ProCD" persuasive -- a contract that exchanges a fair use defense for 
some other consideration (like access to a database) is not preempted 
because it is private law between two parties and does not occupy the same 
field as federal copyright law.  But it is unlikely that this is the case 
with a typical journal publication contract.

Having said this, I find the argument that a professor posting the entire 
text of an article she has written to a public web site is fair use to be 
a little bit tricky.  It seems to me that the first, third and fourth 
factors might all disfavor fair use in that situation.  It is difficult to 
imagine a publisher pursuing such a suit against the author of the article 
they published, but we live in an age of strange litigation strategies, 
especially in the area of intellectual property.  I agree with you that 
restricting access only to students in a particular class vastly improves 
the fair use argument, but my impression was that the author wanted to 
make her work more public than that.

It may depend to a degree on the discipline, but I think the best advice 
for this faculty member is to be sure her publication contracts are 
explicit in allowing her to retain the right to post her work to a 
personal or institutional web site.  In many fields this is now a common 
practice; it is part of the standard publication contract used by Duke 
University Press, for example, for its many journal publications.  If the 
author is unsure about agreements she has signed in the past (and it 
sounded like she is), she should talk with those publishers.  If there has 
been an significant lapse of time since publication, I expect she will be 
told to go ahead and post her work.  In future publication contracts she 
should look for the explicit retention of the right to post her own work 
and decline to publish with a publisher that will not negotiate that 
right.

Best,
        Kevin

Kevin L. Smith, J.D.
Scholarly Communications Officer
Perkins Library, Duke University
PO Box 90193
Durham, NC  27708
919-668-4451
kevin.l.smith@xxxxxxxx
http://library.duke.edu/blogs/scholcomm/



"Lindsey, S Marc" <lindseym@xxxxxxx> 
08/22/2007 06:20 PM

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Subject
Can an Author Post His Article Published in a Journal on His  Web Site?






This is a reply to Jonathon Poritz from Colorado State University.  See
Sandy Hadock's post of August 22. I've recently researched this very
issue and the answer, like many to copyright issues, is complex.

What we have to determine the legal position of this issue is the
opinions of the copyright law titans, Melville and David Nimmer, the
split opinions of a few federal courts and a law review article pretty
much on point in this discussion by Mathew Walden that I'll share with
you.  You can post your article on your web site without the permission
of the publisher whom you have assigned all rights, if it qualifies as
Fair Use.  Many publishing contracts assigning copyrights from the
author to the publisher expressly forbid using published material
without the Publisher's permission whether it is fair use or not. The
question then becomes, does federal copyright law (17 USC Section 107 -
fair use) preempt state contract law?  The afore mentioned copyright
scholars argue that it does. And it's a very persuasive argument. See
Walden's law review article link below. If they are correct, and posting
an article you have authored on your web site is fair use, then you
don't need the publisher's permission.  Without all the facts necessary
for a full blown four factor fair use analysis, I am inclined to think
that this is fair use if you are using a password protected web site and
only students enrolled in your class have access. . Hence no competition
in the market with the publisher. If, however, you intend to post your
article on an open access web site, it becomes more of a stretch for
qualifying for fair use, but not impossible. In my experience most
academic publishers will give limited permission to authors to reprint
or post articles. You'll only know for sure by asking the publisher.

For a detailed legal analysis on federal law preempting state contract
laws, go to:

Walden, Matthew D., Washington and Lee Law Review, Fall 2001
(http://find
articles.com/p/articles/mi_qa3655/is_200110/ai_n8957262/pg_1
<http://find
articles.com/p/articles/mi_qa3655/is_200110/ai_n8957262/pg_1> )

I'd sure like to hear comments on this by others on this list. Thanks.

Marc Lindsey

Copyright Specialist, Washington State University and WSU Press