FAQ ORBi^lu

b) MY RIGHTS

• What documents are protected by copyright and for how long?
• What rights do I have over documents (co-)authored by me?
• Assignments and licences: what can a publisher offer an author?
• How should I negotiate my publishing contracts so as to allow deposit in the repository?
• If I’ve already signed a contract with the publisher, can I renegotiate certain clauses to be able to deposit my publication in ORBi^lu?
• Can I put my conference proceedings on line?
• Can I deposit in ORBi^lu a summary of my document written by someone else?
• What are the rights and obligations of users that access a work deposited in ORBi^lu?
• Does depositing a work in an institutional repository prevent me making money from publication?
• Can I still exploit my work any way I please once it’s been deposited in ORBi^lu?

Protection is only given to original works (marked by their authors’ personality) expressed in a form allowing them to be communicated to the public (a simple idea cannot be protected). Where this is so, works are protected for the lifetime of the author and for seventy years after their death, in favour of whomever they designate, otherwise their legal heirs.

Where a joint work has been created by two or more people who worked in conjunction, copyright exists in favour of all the entitled parties until seventy years after the death of the last surviving co-author.

Authors of works have two types of rights: pecuniary rights and non-pecuniary rights.

Pecuniary rights include:

• the right of reproduction (and adaptation) : full or partial, direct or indirect, temporary or permanent reproduction of the work on any medium (CD-ROM, disc, paper, etc.); all means of reproduction are covered: photocopy, engraving, casting, digitisation, photography, etc. This right also encompasses the translation of a work (especially into another language or even an IT language) or to a new format (book to film, etc.);
• the right of distribution : allows the author to control how copies of the work are sold and what use people who have copies can make of the work;
• the right of public loan : essentially applying to books and electronic media; "Loan" signifies the free use of the work (versus renting the work). This right allows the author to receive payment in return for public library loans;
• the right of public communication (performance rights) : covers direct communication to the public without the intervention of a physical carrier; this may be a stage presentation or also satellite communication, cable retransmission, a radio broadcast, communication of the retransmission in a public place or electronic broadcasting on line;
• Plastic art works are also subjec to right of succession (unassignable and inalienable right which aims to      allow the artist to make financial gains in the resale of his work) and to right of access (which allows the author to continue to have access to his work after a sale).

The non-pecuniary rights are:

• the right of disclosure: the author alone may decide when the work is complete and ready to be disclosed;
• the right of paternity: the right to demand that his/her name or a pseudonym is quoted on the work;
• the right of respect for the work: authors may object to any unauthorised distortion, mutilation, modification or other violation of their works.

Only the pecuniary rights may be assigned or licenced. The non-pecuniary rights may be waived on an ad-hoc basis.

The essential difference between these two types of agreements is that an assignment constitutes a real transfer of ownership of the rights covered by the contract whereas a licence grants a simple right of use over those rights. In other words, by assigning their rights, authors truly dispossess themselves of their rights whereas, by granting a licence, ownership is retained and only a right of use is given.

Assignments include: sale, exchange, gift, contribution to a company, bequest and inheritance.

A licence can be simple or exclusive. If it’s exclusive, the author agrees not to licence the right covered by the licence agreement to any other person, though that restriction only applies to the territory specified by the exclusive licence. Some maintain that the author also agrees not to exploit the licenced right himself/herself personally in that territory.

In the case of a published monograph (in paper format or on a CD-ROM, for instance), a musical, audio-visual or computer work, authors are often asked to sign a publishing agreement. A feature of this specific contract is that the author is under an obligation to assign his/her rights of reproduction to the publisher and that the publisher is under an obligation to reproduce a certain number of copies of the work and then distribute them at its own risk. It is governed by special provisions, which come on top of the rules set down for all types of exploitation agreement signed with authors (see How should I negotiate my publishing contracts so as to allow deposit in the repository?).

These rules include:

• an obligation to state in the contract the minimum number of copies from the first print run;
• the publisher’s obligation to exploit the work within the agreed period and to send the author a statement of account once a year reporting its sales, receipts and assignments according to each means of exploitation;
• unless otherwise stated, the author’s right to a proportion of the gross receipts from publication of the work and, if the fee is clearly disproportionate to the profit made by the publisher, the right to claim a fair share of the profit;
• an exclusive prerogative on the author’s part to terminate the contract if the publisher goes into bankruptcy, administration or liquidation or if all the copies of the work should be destroyed.
• ...

The two most common types of agreements in the field of publishing are assignments and licences.

Fundamentally, assignments should be avoided because they entail a full transfer of the author’s property. In that case, the author is finally and irrevocably dispossessed of his/her entire rights in favour of the assignee (the publisher) (provided the formal conditions for the validity of contracts are met). Under a licence, copyright remains with the author (or, more generally, the right-holder) who grants a right of use in favour of the licencee (the publisher). Licences can be exclusive or simple; with an exclusive licence, the author agrees not to licence the licenced right to a third party within the territory specified in the licence in favour of the exclusive licencee. Some maintain that the author also agrees that he/she will not himself/herself personally exploit the licenced right in that territory.

On a general level, it has to be borne in mind that a publisher may only exercise the rights that the author has explicitlyassigned/licenced. Therefore, under Luxembourg law, if no written agreement has been signed or if the agreement does not cover reproduction and on-line broadcasting, the author is free to deposit the work under open access in an institutional repository.

It is therefore very important to ensure that no more rights are assigned/licenced than are strictly necessary for the form of exploitation envisaged by the publisher and that the rights needed for possible future exploitation should be held back.

In other words, wherever possible, only grant limited, precisely worded assignments/licences.

It’s therefore better to grant a partial assignment of rights, giving the assignee reduced prerogatives, than to grant an exclusive licence covering all aspects of the author’s pecuniary rights throughout the entire period of copyright protection.

In all events, if in doubt as to the scope of the proposed assignment or licence, and, hence, as to what rights the author retains for him/herself, one solution to still be able to deposit a work in the University’s institutional repository would be to suggest incorporating a special clause into the agreement, expressly authorising the author to make the document accessible via ORBi^lu. (possibly subject to certain conditions, like adhering to an embargo period, quoting a link to the publisher’s site, etc.). A model clause that can be sent to publishers for this purpose is available in the ORBi^lu Toolbox .

Yes! It is always feasible to negotiate with the publisher with a view to signing a rider that departs from the contract’s provisions and expressly allows the author to deposit his/her work in the University’s institutional repository, though certain conditions may be laid down.

A model has been drafted for this purpose.

Furthermore, negotiating a rider is to be highly recommended since, when publishers receive multiple requests of this sort from authors, they will be more amenable to adopting a permissive policy under which authors don’t need their agreement to self-archive works.

Yes, unless you’ve granted an assignment/licence to a publisher or conference organiser which includes the right of digital reproduction and distribution on the internet. If you have, you have to negotiate with the assignee or licencee to sign a rider expressly authorising you to deposit your conference proceedings in the University’s institutional repository so that it is available on line.

Summaries are works whose status is comparatively tricky. Their writers are also well advised to exercise a certain degree of caution. In substance, in order to avoid claims of infringement, a summary may not include original elements of a text without the consent of the text’s author, despite the fact that, from a scientific point of view, a summary has to be drafted as faithfully as possible to the text being summarised.

“Original elements”should be understood as meaning not only the words and phrases used but also the work’s structure (if it is original, and therefore protected by copyright), i.e. its layout and organisation and the ideas contained in it.

Writers of a summary must therefore try to reflect as best they can the spirit and substance of the text being summarised, but without being able to include its terms or structure as such; otherwise, consent must be obtained from the author of the text or they must make a quotation (whilst still adhering to the conditions for exercising that right).

If the summary meets these conditions and is also original, it is protected by copyright. In that case, the text’s author must seek permission from the writer of the summary to be able to use it.

Before accessing the full text of a document placed in ORBi^lu under open access, users have to read the user licence for works, and agree to them. The conditions provide that users may read, download, copy, transmit, print, search or make a link to the document’s full text, dissect it for indexing purposes or use it for any other lawful purpose provided there is no intent whatsoever to seek commercial gain.

They nonetheless agree to honour the author’s non-pecuniary rights, mainly the right to integrity of the work and the right of paternity, such that they cannot make any alteration to the work and that, if they reproduce a document, they have to fully cite the sources as set out in the ORBi^lu repository.

No more, no less than with classic publication in a commercial journal in paper or electronic format. In all cases, before distributing a document you have written, in whatever form, you have to make sure it is not confidential (e.g. results obtained from doing research under a contract containing a confidentiality clause, secret know-how, an invention for which it is intended to apply for a patent).

When depositing a confidential document in the ORBi^lu institutional repository, it should be placed under closed access.

Yes, because the agreement with the University when depositing the work is a non-exclusive licence. You therefore keep the right to exploit the work personally or grant a non-exclusive licence over it for the purpose of publishing it in any form. For means of exploitation not covered by the licence (ex: exploitation in paper form), you can also grant an assignment or an exclusive licence.