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ESC Copyright Information Website: Your Copyright

Your Copyright

When you create content, it is automatically and immediately copyrighted. The content does have to elements original authorship, but the standard is fairly minimal. For example, while a simple list is not copyrightable, putting the list into a certain visual format and using categories would make it copyrightable. Copyright takes effect as soon as it's "fixed in a tangible medium of expression" - written, recorded, put online, etc.

As the owner of the copyright of your content, you have the exclusive right to make copies, distribute, share and sell those copies as well as make derivative works and distribute, share and sell those derivative works. You also have the exclusive right to transfer those rights. This can be done either in part and temporarily via a license, or altogether by selling or giving away the copyright. 

  • A work doesn't have to be published to be copyrighted.
  • A work doesn't have to be registered with the U.S. Copyright Office or the Library of Congress to be copyrighted.
  • There is no such thing as copyrighting a work by mailing a copy to yourself. 
  • A work does not need to have a copyright notice or symbol on it to be copyrighted.

You Still Might Want To Register Your Copyright with the U.S. Copyright Office

Even though copyright happens automatically, you should register the copyright to anything that you want to be able to defend against infringement in court. Ideally, you should register your copyright within three months of publishing, posting or distributing the work. You only need to register your copyright once; however, some authors choose to re-register the work when it is published, or published in a new edition

  • The U.S. Copyright Office charges $45 to register a copyright online. It costs more if you submit your paperwork by mail.
  • You will need to complete a form and submit one or more copies. Which form and how many copies varies with the type of work. Details are at Registration Procedures.
  • You will receive a certificate or notification that you need to submit more information, or notification that your application has been rejected.
  • Your copy or copies will be deposited with the Library of Congress.
  • You also can submit your registered copyright to the U.S. Customs Service, which will prevent the importation of infringing copies.

The Copyright Notice

  • Copyright notices are not required for unpublished works and have not been required for published works since 1989.
  • A copyright notice prominently displayed on all copies of your work is a convenience for your readers and will be helpful if you ever have to defend your copyright against infringement in court.
  • The standard form for a copyright notice is the © symbol, followed by the date of first creation or publication and the name of the copyright holder, i.e., © 2011 Empire State College.

Does a work's copyright belong to you or to the college? 

Is it web copy, a promotional video, operational materials, or something like that? If so, your work belongs to the college. 

Is it an artistic, creative, or scholarly work? If so, your work belongs to you (unless you have transfered the copyright to a journal or publisher as part of a publishing agreement.)

Is it a course or instructional content? If so, your work belongs to you, unless you have signed a Letter of Agreement that makes it the college's intellectual property. However even though you own the copyright of your courses, the college reserves the right to reuse your content internally as part of future course revisions, even if you leave the college. 

If you are the copyright owner for any content, you can place it in the Creative Commons. This means you still own the copyright, but you are giving global permission for certain kinds of uses. The college encourages faculty and staff to place instructional content into the Creative Commons (making it an Open Educational resource) because of its benefits to society and scholarship. 

The college also encourages faculty and staff to negotiate author agreements with journals in which the authors retain the the rights to their content rather than transferring the copyright to a journal. This allows the authors to archive their work in institutional and disciplinary repositories for access that is free to the public (called Gold Road Open Access.) 

SUNY Regulations on Intellectual Property

"Generally the members of the staff of the University shall retain all rights to copyright and publish written works produced by them. However, in cases where persons are employed or directed within the scope of their employment to produce specific works subject to copyright the University shall have the right to publish such work without copyright or to copyright it in its own name. The copyright will also be subject to any contractual arrangements by the University for work in the course of which the writing was done." - Regulations of the State University of New York Board of Trustees: Title J: Patents, Inventions, and Copyright Policy

"Under the current SUNY copyright policy, faculty retain ownership of works produced in the scope of employment, including works produced for on-line instruction unless there is a written agreement between the University and the faculty member to the contrary.   Putting it more specifically, SUNY and faculty may contract for 'work-for-hire,' authorize the work in advance by written agreement, and determine in the contract who the owner shall be.   With respect to work produced for on-line instruction,  practice regarding the use of written agreements varies from campus to campus.   In the absence of a written work-for-hire agreement, copyright ownership vests in the faculty."
- SUNY Faculty Copyright Ownership

Who Are My Coauthors?

If you authored the work with anyone else, then it is considered "joint authorship," and they co-own the copyright with you. Contributors, on the other hand, don't have any claim to the copyright. 

What's the difference between an author and a contributor? At one level it's simple. The author or authors of a work are the ones listed as author or authors when the work was registered with the U.S. Copyright Office. How tautological! But not all copyrighted works are registered, and how do you decide who to list as author when you do register? 

Conceptually, an author is somebody who provided both ideas and expression. A contributor provides very little of both, or all one or the other. For example, somebody who helps you with how to phrase things or come up with a diagram is a contributor, not an author. Somebody who gives you an idea or a lead is a contributor, not an author. Contributors may or may not need to be credited (generally those who contribute important ideas, but those whose job it is to help you with technical aspects do not) but they never get co-ownership of copyright.

  • You do not need to give credit to proofreaders, librarians, educational technologists, etc.
  • Give credit by name to colleagues and students who contributed ideas or interpretation of data

Many professional associations and publishing houses have their own detailed instructions for determining authorship. It is a good idea to check the relevant ones in advance. You should know who your authors are going to be at the start of the project, and make sure that everyone agrees on that, including the order in which you get listed. If, over the course of the project, you find that a contributor is contributing so much that it would be more fair to call them an author or coauthor, you will need to discuss and agree on that. Never let these questions wait until the time of publication!

Another detail: If you authored a chapter in an edited volume, you own the copyright to that chapter but you do not co-own the copyright of the edited volume.

Do I need my joint authors' consent?

No matter who did which parts of the work of creating it, joint authors equally own all parts of the finished work. For example, if one person wrote the script and another person created the visuals, both of them own equal shares of whole video and are entitled ot half the proceeds of selling or licensing it. 

You DO need all of your joint authors' consent to:

  • sell or otherwise permanently transfer the rights to anyone else
  • grant an exclusive license to use the content

You DO NOT need all of your joint authors' consent to:

  • transfer your share of the copyright to someone else either during your life or bequeathing it after your death
  • grant a non-exclusive license to use the content
    • this means you can put an article in an Open Access repository without the consent of your joint authors, and since it won't harm their interests, it is a common practice to do so.
    • same for granting Empire State College a perpetual, non-exclusive to use the content in future revisions of courses and in other courses.
    • Creative Commons licenses are non-exclusive, however, if your joint authors had expected to collect royalties or control the use of the work that you created together, it would be professionally rude/unethical not to get their consent first!

Author Rights When Publishing

Many forms of publishing traditionally involve the transfer of the copyright from the author(s) to the publishing house or journal. This is no longer always the case. Retaining your authorial rights has significant advantages for you as a scholar, but it does involve some checking and negotiating.

Ideally, the journal will:

  • Allow you to retain copyright
  • Allow you to archive the accepted or published version of the article in a repository (and not just a pre-print)
    • The published version is exactly the same as appears in the journal
    • The accepted version is the one that has gone through peer review and been revised, but has not been through the final copy-editing and formatting
    • The submitted version or preprint is the draft that you submitted to the journal, and has none of the changes made after peer review. This makes it much less useful for researchers. 
  • Not require an embargo (delay before you can archive in a repository)

Different Journals Have Different Authorial Rights Options

It helps to know your first, second, and third choice journals to publish your article in before you start writing it. This allows you to plan for things like author fees (see below) and work them into your grant seeking.

A journal's standard practices regarding authorial rights should be one of the factors you weigh in choosing your top picks to publish in. Sometimes a journal's standard practice is to require that you transfer the copyright to them, or prevent you from archiving your submitted or published version, but you can negotiate.

Open Access journals allow authors to retain copyright and self-archive the published version by default. Be careful of fraudulent Open Access journals though! They have low overhead to operate, so many have sprung up merely to gather author fees or serve as a vehicle for publishing the work of scholars rejected by reputable journals. You can use the Legitimate Journals Checklist to eliminate those from consideration.

Use an Author Addendum To Retain Authorial Rights

SPARC has an Author Addendum that you can add to your Author Agreement that you sign with your journal publisher. If the journal publisher agrees, it allows you to retain full authorial rights. 

Considerations:

  • The journal may agree to the terms on the condition that you pay an author fee, which ranges from several hundred to several thousand dollars. You can of course refuse their terms or talk them down. 
  • A reputable journal will NOT reject your article just because you asked to retain your authorial rights. It is a common practice now, and while they may try to discourage you, you haven't done anything outrageous or wrong.

ORCID - Get Your ID!

ORCID is the system of unique digital identifiers for researcher-authors in the Open Access system. Your ORCID links you to your publications, grants, institution and association affiliations, etc. It works across platforms and increases the probability of someone who learns your name finding your whole body of work. Once you've set it up, sharing your ORCID is like sharing your CV, except that it includes that and more, and also dynamically updates.

ORCID is not just for Open Access authors, but it becomes mandatory for submitting your work to many repositories. (It is not mandatory for our repository, but it is considered a Best Practice.)