sandboxes and copyright

>From: filmer[_at_]usra.edu (Paul Filmer)
>Subject: Sandboxes & copyrights
>
>Certain areas of physics (string theory in particular) have established
>bulletin boards for works-in-progress, often termed 'sandboxes'. To read
>the latest theories, one goes to the sandbox and gets what in the past
>would have been a pre-print from a colleague.

>While the material has not undergone peer review, the community feels that
>the sandbox fulfills a beneficial function. Comments can be forwarded to
>the author, and the paper evolves in this fashion.

>Question: The paper has been posted to a public bulletin board, and is
>therefore in the public domain. The author now submits the paper to a
>journal (for archival and tenure purposes...), and the journal claims
>copyright. How can this be? Must the journal publish such material
>without copyright?

First, the paper is not in the public domain simply because it is posted to a public bulletin board. Copyright attaches as soon as a work is fixed in a tangible medium. Although posting to a public board might constitute publication, publication without a copyright notice no longer places a work in the public domain. The author of the paper retains the copyright unless he specifically dedicates the work to the public domain or assigns the copyright to someone else.

Second, journals often claim what they don't have. Over the past several years, I have learned that most journal publishers have a woefully inadequate knowledge of copyright. And fewer still take the time to get advice on their copyright policies from attorneys. I have been surprised by the large number of journals who do not know that an assignment of copyright must be in writing and signed by the author. Many journals use a policy which states that submission of an article for publication constitutes assignment of the copyright to the journal if the article is published. I have called the editors of a number of these journals for which I have written and explained to them that such policies are not effective because the law requires assignments to be in writing and signed by the author. Then I read them the statute. Most are very surprised at what I read to them, but all that I have written for have agreed after reading the statute that they do not own my copyrights.

What bothers me even more is that these same journals authorize the CCC to collect royalties on my works when they definitely do not own the copyright in my works. As far as I can tell, the CCC does nothing to verify that the publishers they deal with do indeed own the copyrights in the works being licensed through the CCC. When I spoke to representatives of the CCC, they told me that they rely on the publishers, many of whom appear to know little more about the law than the general public.

So don't believe everything the publishers claim in thier copyright statements.

Mary Brandt Jensen       	   "The definition is pursued to its logical
Professor of Law                   conclusion in a long series of cases. 
University of South Dakota         ... We do not pause to consider whether
School of Law			   a statute differently conceived and 
414 E. Clark St.		   framed would yield results more 
Vermillion, SD 57069-2390	   consonant with fairness and reason.
(605) 677 6363			   We take the statute as we find it."
(605) 677 6357 fax		   Benjamin Cardozo, Anderson v. Wilson
CNICOPY[_at_]CHARLIE.USD.EDU		   289 U.S. 20, 27 (1933)
****************************************************************************