1. Under copyright law, there are three main sets of rights: economic rights that allow authors to control certain uses of their works, moral rights in some jurisdictions, and users' rights that allow certain uses without permission. 2. University policies determine ownership of works created by faculty and staff. They may claim ownership if substantial university resources were used, or allow open access through non-exclusive licenses. 3. Open access removes price and permission barriers by making works freely available online while allowing authors to retain copyright. It aims to maximize dissemination of knowledge through options like Creative Commons licenses that permit broader uses.

1. Copyright’s Relationship with Open Access
~
Legislative Framework that Contextualizes OA Policies and
Practices
Victoria Owen MLS, LLM (IP)
Chief Librarian, University of Toronto Scarborough
Chair, IFLA - Copyright and Other Legal Matters
4th Annual Lusophone Open Access Conference
São Paulo, Brazil
October 7th, 2013

2. How does copyright law relate to Open Access?
Does copyright support or oppose OA?
• Approach it from the legal side
• Look at applicable laws from the perspective of
the academic

3. What are your rights in the scholarship and learning
tools that you have created?
• Under the law
• Through your University
• In Open Access

4. Framing your intellectual property (IP) rights
What is the context for your rights?
What do you want to achieve with the dissemination of
knowledge?

5. Copyright Basics
National context – Copyright legislation
Everything that applies to copyright is in the Act
Copyright’s balance*
a.
b.
Public interest goal - Reasonable access to works for the benefit to
society
Private interest goal – Rewarding creators
The Act enshrines sets of rights that apply to all protected
works
Victoria Owen 2012

6. Essence of copyright
Authors create works.
They hold rights in the works, limited time (life + 50 [or
70 or…] years).
There are limitations and exceptions to authors’ rights in
most jurisdictions*.
There are penalties for infringing the rights of the
authors.
Victoria Owen 2012

7. 1. Under the law: three sets of rights
Economic Rights*
1. Produce or reproduce, translate, perform,
publish, adapt, communicate…
Moral Rights - in some jurisdictions
1. Integrity of the work, association with the work
Users’ Rights*
1. Use of works do not require permission
Victoria Owen 2012

8. Economic rights in works
S. 3 of Copyright Act - Copyright in works
1. 3. (1) For the purposes of this Act, “copyright”, in relation to a work,
means the sole right to produce or reproduce the work or any substantial
part thereof in any material form whatever, to perform the work or any
substantial part thereof in public or, if the work is unpublished, to publish
the work or any substantial part thereof, and includes the sole right
…/
Victoria Owen 2012

9. Author’s economic rights
1. To produce, reproduce
2. To perform in public
3. To translate
4. To convert from one type of work to another
5. To make sound recordings or cinematographs
6. To communicate by telecommunications
7. To present at a public exhibition
8. To rent computer programs
9. To sell or transfer ownership of a tangible object
10.To authorize any of the above noted rights
Victoria Owen

10. Ownership of rights
Author / creator
Assignable – usually to publisher
Only one owner of copyright at a time *
Victoria Owen 2012

11. Users’ rights
Recall the carve out for unsubstantial takings
Exceptions and limitations to copyright
Fair dealing, educational institutions & LAMs
S.29
1. Fair dealing
a. Research and private study
b. Criticism and review
c. News reporting
d. Education
e. Parody and satire
Victoria Owen 2012

12. 2. Under the University: e.g. U of Toronto’s Copyright Policy
• Determines the ownership of works
Defines Instructional Software – “designed for instructional
purposes that provides for interaction with the user, or makes
use of multi-media products, or both, and includes technology
enabled learning products in electronic format.”
Rights in instructional works undertaken by teaching staff and
librarians are not deemed to be undertaken in the course of
employment and are owned by the author

13. Policy - Substantial use of University’s Resources
Extraordinary provision of resources by the University
• invokes a special clause giving the University the
rights to revenue, according to the policy, and
• Perpetual, irrevocable, royalty-free, non-exclusive
license to use, revise and modify the work for
research and teaching purposes
• Provide this information up-front to the University

14. How will you manage your rights?
According to the law and the University policy, you own
the rights in your work.
If you do nothing all the rights are reserved. You will have
to deal with every request for use – or not have the
work widely used
The education mission allows for a different approach
to works - universities espouse wide dissemination and
attribution of works.

15. 3. Open Access provides another option
Consider that open access (OA) literature is digital, online,
free of charge, and free of most copyright and licensing
restrictions.
You retain your copyright. You make decisions about access.
“OA is compatible with copyright, peer review, revenue (even
profit), print, preservation, prestige, quality, careeradvancement, indexing…
The primary difference is that the bills are not paid by readers
and hence do not function as access barriers.”
*UTSC project Bioline International – servers in Brazil

16. Copyright’s Relationship with Open Access
Open Access
Copyright
Removes price barriers
Permission barriers
Free of charge
Creator owns rights and can
assign
Publisher will arrange
permissions and fees
Determine flexibilities for
commercial re-use,
derivative works
Publisher determines price
and permissions for re-use
and derivatives

17. Copyright’s Relationship with Open Access cont’d
Open Access
Freely available on the
internet, to read,
download or mine data
Copyright
Limited browsing, abstract
only
Behind pay wall, available
through purchase
Immediate access in Gold OA Embargo period before
adding to IR
No legal, technical or
financial barriers to use
Legal restrictions and
financial barriers

18. Copyright’s Relationship with Open Access cont’d
Open Access
Copyright
Access based on consent of
© owners for new works or
if in public domain
Lawful access –
unrestricted copying,
reading, sharing, printing,
downloading
Wide dissemination would
require copyright reform to
permit use for research,
education, fair dealing, etc.
Option to use Creative
Commons licenses
Adhere to moral rights of
association
May recognize moral rights

19. Copyright’s Relationship with Open Access cont’d
Open Access
Copyright
Use does not infringe
Uses beyond exceptions
infringe
No royalty fees
Royalty fees
Write for impact, advance
knowledge and career
Payment expected by nonacademics

20. Copyright’s Relationship with Open Access cont’d
Open Access
Copyright
Covers any digital content,
data sets, raw data
Works of ‘creative expression’
covered by © Facts and
information are not
protected
Covers dissemination of
publicly-funded research in
some jurisdictions
L&Es represent the public
interest/balance in ©
Society’s benefit from the
government’s grant of the
limited monopoly of ©

21. Sub-Groups of OA
Gratis OA
No price barrier
Carries copyright and licensing restrictions
Limit takings consistent with the law (L&Es)
Libre OA
Removes price barriers and some other restrictions
Allows use beyond fair use

22. Copyright’s Relationship with Open Access
Copyright has a dual purpose – the dissemination of
knowledge and the protection of the rights of the
creator.
Open access is compatible with many facets of copyright
law. The main areas of divergence relate to economic
rights and users’ rights.

23. Thank you.
Victoria Owen, MLS, LLM (IP)
Chief Librarian
UTSC Library