Open Access for NJIT Authors

People often use the terms "author rights" and "literary rights" to mean copyrights. Copyrights are legal rights that attach to certain types of intellectual property. Copyrights are granted under federal law to authors of creative works at the time of the work's creation in a fixed, tangible form. Authors do not have to apply for or file a copyright.

Section 106 of the Copyright Act states that only the owner of a copyright has the authority to use the work in one of six ways (examples of each provided as bullet points):

1. To reproduce the work
   • E.g., make physical or digital copies of your work for colleagues, students, or others
2. To prepare derivative works based upon the work
   • ​​E.g., prepare a subsequent article, chapter, or book that builds upon their original or prior research on a particular topic
3. To distribute copies of the work
   • ​​E.g., distribute physical or digital copies of your work to colleagues, students, or at conferences
4. To publicly perform the work
   • E.g., s​​how video of your field work in the classroom or at conferences
5. To publicly display the work
   • E.g., show photos, exhibits, and figures from your works in the classroom or at conferences
6. To publicly perform sound recordings via a digital audio transmission
   • E.g., for those working with sound recordings, to digitally transmit your work (broadcast online, etc.)

​What are exclusive rights?

Copyright law states that only a copyright owner may engage in the six aforementioned rights. However, because knowledge and society would fail to progress if only a copyright owner could engage with copyrighted works, there are two ways in which others are legally permitted to use copyrighted works. These are referred to as copyright limitations.

Copyright limitations

Copyright is limited in two ways: statutorily and contractually.

Although there are several statutory limits, the two most commonly known among researchers and librarians are fair use (Section 107) and the libraries exception (Section 108). When a statutory limitation is applied, the copyright owner still owns the work and the copyright in it, but the law permits others to use the work under certain circumstances. When a copyright expires -- currently 70 years after the death of an author, although there are several nuances to this rule -- the work is no longer protected by copyright and the public can use the work in any way they desire. 

Contractual limitations arise when a copyright owner engages in a private agreement with another party that affects the ownership or use of the copyrighted work. The six exclusive rights discussed above are commonly referred to as a "bundle of rights" because copyright owners control each of the rights individually and as a group. When a copyright owner contracts with another party to permit use of their rights, the owner can give away one, some, none, or all of their rights. He or she can transfer or license the rights. He or she can enter into an exclusive or non-exclusive, irrevocable or revocable license. Because the flexibility to give away rights is so tailored-made, authors wield a lot of power in negotiating their authors rights agreements with publishers.

Despite the power authors have as copyright owners, they become powerless when naively signing away their copyrights when executing an author agreement. Most author rights agreements transfer all copyrights to the publisher in their entirety. Researchers should thoroughly read their publishing agreements and discuss them with their Library liaison or the Copyright Information Center before signing to verify what rights they are being asked to give away.

A complete transfer of copyright can have the following negative implications:

• Transferring distribution rights may prohibit an author from publishing the work in a repository or other source as required by the terms of a funding agreement;
• Transferring reproduction, distribution, public display, or public performance rights may prohibit an author from sharing their work with their students, colleagues, or professional organization;
• Transferring reproduction, distribution, public display, or public performance rights may prohibit an author from sharing their work in their institutional repository or website, in some cases triggering receipt of a take-down notice;
• Transferring the right to make derivative works may prohibit an author from creating follow-up or related works based on their own research;

Bottom line: 

• Transferring all copyrights means authors no longer own their work or the right to control where or how it appears; and
• Transferring all copyrights may result in a publisher reusing an author's works without permission or notice.