This is one of a series of questions submitted by attendees of the Copyright, Common Mistakes and Myths Webinar and answered by Laura N. Gasaway, author of Pocket Copyright Guide for Publishers.
Question: I work on academic journals, and we often run into situations in which authors “resubmit” papers based on research that has appeared in some form in another association’s conference proceedings. Excluding a one-for-one reproduction of a work, what are the copyright implications when one version of a paper serves as a “launching point” for a new version? For example, a submitted article might draw from the authors’ same core research and demonstrate overlap in its foundational discussion, but present findings and implications that are unique to the new article and are targeted and, to some extent, rewritten to appeal to a particular journal’s interests.
Answer: This is a complex question so lets break it down into parts.
1. What are the general copyright concerns in this situation?
Assuming that the author retained the copyright from the first paper, then publishing a later version with your journal is no problem. The author owns the derivative right which includes the right to prepare new versions. A new version has a new copyright in the new material added, but anything used from the earlier version has the copyright from the earlier version. If the author held on to the copyright then there is no problem.
2. What burden is on the respective publishers?
They need to make sure that the author actually did not transfer the copyright to a previous version to someone else. Typically, just presenting a paper at a conference does not require a transfer of copyright, so the author likely still owns it. Unfortunately, authors often have no idea whether they transferred the copyright. In that situation, you might require the author to indemnify the journal should someone else own the copyright and complain.
3. What burden falls on the author(s)?
Authors should be aware whether they own their own copyrights! This is unlikely to happen, however. If the author transferred the copyright to another publisher, then the author who creates a new version is infringing on the copyright (which he or she no longer owns). That is one of the reasons that I encourage publishers to take only the rights they need – reproduction and distribution, plus the electronic rights – but not the derivative right. Conversely, we also publish proceeding papers from our own conferences (for which we hold copyright) that authors often want to adapt into new articles for other journals.
So, does the journal actually own the copyright in each individual paper or in the compilation of the papers that is published as proceedings? To own each article, each author must execute a signed transfer to the journal which transfers the copyright to the journal for the individual paper. Many publishers understand this and are not so rigid about individual authors having to transfer the entire copyright. It is the compilation that the publisher sells. If it is important for the journal to own the copyright in the individual article, I would suggest that you consider whether you can let the derivative right remain with the author.
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