Re: Pre-electronic publications

Very hard to answer without the contracts. Several possibilities exist (and I am probably not being exhaustive here)

1. Contract gives exclusive license to publish in any media for the length of the copyright. If broad enough and explicit enough, this may well include technologies that did not exist at the time. But if it is not written broadly enough, a court could construe it as being an exclusive license to publish in print form only. It depends in no small part on the language used.
2. Contract purports to be an assignment of copyright. May or may not reallly be an assignment or transfer of the full rights of the author -- depends upon the language and intent. If the assignment is valid and complete the author no longer has any rights as a copyright holder, but may have some as any user would.
3. Contract is badly written. All bets are off. Could be anything. Likely to be construed favorably for the author to publish it electronically now.
4. Contract was not revised to reflect 1976 act and so reads like it did under the 1909 act. See comment 3.
5. The author may have a good fair use argument here given the nature of the work and the lack of lingering economic value in the published hard copy. But fair use is fact specific.
6. There could be a work made for hire problem with the university where he or she originally worked when the work was created such that the university owns the work. Not likely a problem for a lot of reasons, but could be a problem.

On this sort of thing I take an aggressive stance in favor of fair use and authors7 rights so that I would go ahead and put the info online. At the very least one has very good arguments that would allow it and the likelihood of there ever being a legal claim or suit is very remote. In general I do not like to give advice based on the lack of likelihood of a suit, but it does figure into the proper play-in-the-joints sort of analysis one needs to get through the copyright maze appropriately.

Universities and authors should respect copyrights and copyright law. But they also are in the business of disseminating information -- the constitutional and cardinal justification for copyright in the first place, and fair use and other ideas and limitations within and without the code are designed to allow uses that further the fundamental aims of copyright law. And so I would generally consider putting such things online a good and legal thing to do.

This is not a legal opinion to a client. I cannot fully evaluate any such situation without more facts and details. And no attorney-client relationship is created by answering this question.

I normally don't bother including the disclaimer, but this one gets a bit closer to legal advice, so there it is.

Steve
from japan, where it is already tomorrow today

On 7/22/06, Marcia Keyser <marcia.keyser[_at_]drake.edu> wrote:
>
> Some friends and I have been debating a topic, and we have decided we
> would like more opinions. Take a research scientist who was actively
> publishing in scientific journals in the 1980s and 90s, and whose
> contracts did not specify anything about electronic versions of the
> articles. The same scientist, of course, has lost the copies of the
> publishing contract (but not the articles). Is he or she free to
> publish these articles on his web site? Is his/her institution free
> to place them in an institutional repository? What if they have
> changed institutions (schools) since publishing the article?
> Thank you,
> -Marcia Keyser
> -Drake University
>
>

-- 
Prof. Steven Jamar
Howard University School of Law