Page:Open access and the humanities - contexts, controversies and the future.pdf/105

 Act of 1988. In the United States, copyright was enshrined in the constitution in 1787 and designed ‘To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries’.2 The international enforcement mechanism for copyright is the Berne Convention for the Protection of Literary and Artistic Works of 1886 in which signatories agreed to recognise the copyright of all signatory nationals as though they were home nationals. Copyright is automatically conferred on eligible works; simply by creating a work, the author invokes the legal protections. However, some things simply cannot be copyrighted: facts and ideas being the most notable categories. Instead, in these instances, what falls under copyright is the expression of the facts or ideas. Because expressions of the same idea can be similar, copyright also exists on a spectrum of enforcement and strength that must be weighed by a court when a challenge is made.

Copyright is generally held, in its contemporary usage, to separate economic rights from moral rights. Economic rights (the ability to reproduce the work, to make derivative works, to perform the work publicly, to display the work publicly and to transmit the work3) can be sold or transferred and treated as though they were any other form of property. Moral rights (such as the ability to be named as the author of the work, the right to be published anonymously and the right to the integrity of the work) cannot usually be sold or transferred but can be waived.4 The time period for which copyright applies is, counter-intuitively, incredibly difﬁcult to ascertain accurately. To grossly simplify, however, in the case of ‘a personal author who produced a work on or after January 1, 1978, it is covered for the life of the author plus seventy years’.5 As an amusing aside, critics of the current copyright regime note that there appears to be a direct coincidence of legislation to extend copyright terms at the moments when the still highly lucrative works of The Walt Disney Company are to become public domain.6

Under the contemporary system of academic publishing as of 2014, there are a variety of approaches taken by different publishers towards licensing and copyright: most publishers ask for a copyright assignment or transfer; some ask for an exclusive license to publish; occasionally, a non-exclusive license to publish may be appropriate;