Preprints, postprints, and copyright

Michael Carroll, Copyright in "Pre-Prints" and "Post-Prints", Carrollogos, May 3, 2006. Excerpt:

In some quarters of the Open Access movement, some confusion has arisen with respect to copyright law and the many iterations through which an article goes. The comments that follow describe how U.S. law looks at "pre-prints" - the version of an article first submitted to a publisher, and "post-prints" - the author's final manuscript incorporating changes made after peer review. I wrote these comments in response to the question whether an author could grant a Creative Commons license to use a pre-print after having signed away all rights under copyright to a publisher. These comments are for your information and are not legal advice.

The short answer is no, an author cannot grant a Creative Commons license in a pre-print after having signed away all rights in the article in a publication agreement. Although technically distinct, the copyrights in the pre-print and the post-print overlap. The important point to understand is that copyright grants the owner the right to control exact duplicates and versions that are "substantially similar" to the copyrighted work. (This is under U.S. law, but most other jurisdictions similarly define the scope of copyright). A pre-print will normally be substantially similar to the post-print. Therefore, when an author transfers the exclusive rights in the work to a publisher, the author precludes herself from making copies or distributing copies of any substantially similar versions of the work as well....

Carroll is a law professor at Villanova University and a member of the Board of Directors at Creative Commons. Carrollogos is his new blog, which will often cover copyright and OA issues. Check it out.