David Dailey <David.P.Dailey[_at_]williams.edu> writes:
>A part of the complexity, to me, seems to stem from what may be the
>implicit or explicit assumptions underlying the "sandbox" by its
>participants. A group-ethic often exists (and is sometimes
>explicitly stated) that material distributed within the sandbox is
>freely redistributable (so long as attribution of authorship is
>maintained).
>
[omission]
>
>I would argue that the journal owns its particular expression of the
>document (its typesetting, its editing, its pagination, etc. as a
>particular compilation of a public event), as a derivative work.
>
>The author and the group maintain copyright over the original
>expression in that particular tangible medium under whatever
>agreements originally existed within the sandbox. It is quite
>conceivable that another publisher could later make a second
>derivative work by re-editing and re-typesetting the original,
>under proper agreement by the holders of the original copyright.
That solution may seem intuitive, but it isn't the way it is likely to work out under the U.S. copyright law. The author's submission of the paper to the sandbox can function as an implied, non-exclusive license to reproduce the paper, but it does not transfer any part of the author's copyright to the group. If the author later assigns the copyright to a journal, the journal takes the assignment of a copyright burdened by the implied non-exclusive license. The journal's editorial revisions are unlikely to be sufficiently original to support a derivative work copyright and the typesetting and pagination add nothing in the way of copyrightable expression.
The assignment of the original copyright, or some part of it, will, however, enable the journal to sue the second publisher (and the original author if he or she authorized the second publication) for infringment unless the second publication is clearly within the terms of the implied non-exclusive license created by submitting the paper to the sandbox in the first instance.
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