While the language may be confusing, the US Copyright Act makes it clear that an exclusive license *is* a transfer of copyright.
17 USC 101: *A “transfer of copyright ownership” is an assignment,* mortgage, *exclusive license, *or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, *but not including a nonexclusive license.* This line in Elsevier's agreement creates this confusion: "Authors sign an exclusive license agreement, where authors have copyright but license exclusive rights in the article to the publisher. In this case authors have the right to share their articles in the same ways permitted to third parties..." If *all* rights are exclusively assigned, then the author is *not *the copyright holder. The copyright may be registered in their name, but they are not the copyright holder. If *some* rights are exclusively assigned, then the author *and *the publisher are each copyright holders of whatever rights were allocated in the contract. As to the SPARC "How open is it" scale, Elsevier might try to argue that it should get a 4 out of 5 because the author "owns" the copyright, but by plain text of the statute, it does not. So they are properly placed in the middle of the "Copyrights" scale: "Publisher holds copyright, with some allowances for author and reader reuse of published version" Elsevier is not alone in this practice, by the way; it's unfortunately common. And it's very confusing to authors and editors alike. Heather Morrison is correct to call out as confusing and problematic Elsevier's practice of requiring authors to transfer their copyright to be licensed CC by Elsevier. I'd also like to call out as deceptive this practice of telling authors they are the "copyright holders" when, by the terms of their contract and the statute, *they are not*. Laura Quilter ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Laura Markstein Quilter / lquil...@lquilter.net Attorney, Geek, Militant Librarian, Teacher On Tue, May 24, 2016 at 11:49 AM, Couture Marc <marc.cout...@teluq.ca> wrote: > Hi all, > > > > I also agree that this is an important, but badly treated/understood issue. > > > > For instance, in SPARC’s “How open is it” scale, author copyright > ownership gives a minimum of 4 (over 5) for the “Copyrights” criterion, > irrespective of possible restrictions that, as one sees, may amount in > practice to no more rights than publisher ownership. Thus Elsevier’s > exclusive licence gives them 4/5 for this criterion. > > > > http://sparcopen.org/wp-content/uploads/2016/01/hoii_guide_rev4_web.pdf > > > > In 2012, in my response to SPARC’s Request for Comments on a preliminary > version of this guide, I had stressed this exact problem, explaining that > the real issue was author control over usage, not copyright ownership per > se. I don’t know if I was the only one to do so, but nothing was changed in > the final version. This is the kind of situation that makes me believe that > the issue is all but well understood. > > > > Marc Couture > > > > > > > > *De :* goal-boun...@eprints.org [mailto:goal-boun...@eprints.org] *De la > part de* Peter Murray-Rust > *Envoyé :* 24 mai 2016 04:38 > *À :* Global Open Access List (Successor of AmSci) > *Objet :* Re: [GOAL] CC-BY with copyright transfer > > > > I agree with Heather, this is unclear and needs checking. There is a > difference between the author of a work and the owner. I would agree that > it appears to be a deceptive practice. I have had similar problems > "arguing" with Elsevier about text-and-datamining "licences" where the > licences apparently give rights to Elsevier. > > I will try to get an informal opinion. > > > > On Fri, May 20, 2016 at 6:18 PM, Heather Morrison < > heather.morri...@uottawa.ca> wrote: > > Elsevier's copyright page provides a very clear example of copyright > transfer combined with CC licenses. Elsevier is not alone in this practice; > I see this quite frequently while looking for APCS. > > > > The Elsevier copyright page: > > https://www.elsevier.com/about/company-information/policies/copyright > > > > States under "for open access articles": > > "Authors sign an exclusive license agreement, where authors have copyright > but license exclusive rights in the article to the publisher. In this case > authors have the right to share their articles in the same ways permitted > to third parties..." > > > > This language makes it very clear that when Elsevier applies CC licenses, > Elsevier (or one of its partners) is the Licensor or copyright holder, > even when there is a copyright statement indicating the author holds > copyright. > > > > I argue that this is a deceptive practice that I call author nomination > copyright. > > > > This is important, because CC licenses place obligations downstream for > licensees, not Licensor. The copyright holder of a CC license has no > obligation to continue to provide a copy of the work under the same terms > in perpetuity (unless there is a separate contract). > > > > To assess the extent of this practice one must examine journal/author > contracts, not just visible indications, because even if an author is > licensed CC-BY and indicates the author as copyright holder, it may > actually be the publisher who owns all the rights under copyright. > > > > best, > > > > Heather Morrison > > > > > > > > > _______________________________________________ > GOAL mailing list > GOAL@eprints.org > http://mailman.ecs.soton.ac.uk/mailman/listinfo/goal > > > > > -- > > Peter Murray-Rust > Reader in Molecular Informatics > Unilever Centre, Dep. Of Chemistry > University of Cambridge > CB2 1EW, UK > +44-1223-763069 > > _______________________________________________ > GOAL mailing list > GOAL@eprints.org > http://mailman.ecs.soton.ac.uk/mailman/listinfo/goal > >
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