Are Harvard-style open access policies lawful under civil law? The open access movement tries to make scholarly articles freely available online, to move away from the traditional model where publishers charge access to the articles. To support this movement, universities implement open access policies, requiring researchers to make their works freely available. Open access policies such as that of Harvard or MIT are implemented by granting the university some non-exclusive rights on the works written by faculty. This is very useful as it circumvents subsequent copyright transfers (to some extent). There are a few articles explaining why this is compatible with copyright law, so in common law (see below). I wonder whether similar policies could be designed under authors' rights, in civil law (for instance the french "droit d'auteur"), where rights transfers seem to obey to slightly different rules. Useful links: Simon Frankel and Shannon Nestor, Opening the Door: How Faculty Authors Can Implement an Open Access Policy at Their Institutions Eric Priest, Copyright and the Harvard Open Access Mandate, Northwestern Journal of Technology and Intellectual Property, preprint August 1, 2012
Issues considered Based on the papers you cite, it seems like its not even straightforward in U.S. law. They discuss three main legal questions that are obstacles to implementing an open-access policy: Is there a &quot;teacher exception&quot; to work for hire, giving researchers initial copyright over their papers? Does a non-exclusive partial rights transfer survive a subsequent exclusive copyright transfer? Is a university policy a sufficient legal instrument to achieve the non-exclusive rights transfer in question (2)? Turns out, this scenario is specific enough that it really matters which jurisdiction is being considered. I took this question as an opportunity to research the copyright regimes of France, Germany and Japan (translations of their respective copyright acts linked). Japanese copyright law is fairly similar to U.S. copyright law in terms of rights transfer, so I will mainly be analyzing the first two (that and I have no competence in Japanese). I am not in any position to be writing papers over this subject, but in considering questions (2) and (3) with a civil law context, I'll cover some laws on governing rights transfers. I'm not considering question (1) because if the university holds original copyright, then it is trivial for them to implement an open-access policy. I thus assume the faculty members hold original copyright for this answer (which is generally the case in France and Germany anyways). Author's rights basics Author's rights are separated into two branches: moral rights and economic rights. Moral rights are generally non-transferable. Often they cannot be waived and last for eternity. Economic rights are those which can be transferred and exploited, but as you note these may also be subject to restrictions. For the rest of this answer, I will be avoiding the term &quot;copyright&quot; as it is ambiguous: It can mean just the economic rights (like in the translated Japanese), or author's right as a whole (like in the translated German and French). Note: Links from this point on are in French (English resources weren't sufficient). Survival of non-exclusive rights transfers In Germany, this is a straightforward affirmative: Section 33 states: Exclusive and non-exclusive rights of use shall remain effective with respect to rights of use granted later. [...] In France, an answer to this question is elusive. This isn't too surprising as French statute hardly references non-exclusive licences. As an example, it took until 2007 for the GPL to be recognized in court. Given that the courts have been leaning towards giving weight to open licenses, my assumption is that they would follow the common-sense approach taken by German law though I've not found any direct statement to that effect. Implementing an open-access university policy From an author's right perspective, the biggest issue I see in drafting such a policy is that by default the authors give the university a non-exclusive right of distribution for future articles. France has particularly strong protections for future works. L131-1 states: Total transfer of future works shall be null and void. Though it may look as if this can be easily avoided by adding a few simple small clauses, jurisprudence has been to interpret this in favour of the author when possible. For further information, see here. While I'm of the opinion the scope of the policy would be narrow enough to avoid the reach of L131-1, there are additional restrictions on publication contracts. Noting that giving the university non-exclusive distribution rights will likely make the university a &quot;publisher&quot; in the eyes of the law, L132-4 states that: A clause by which the author undertakes to afford a right of preference to a publisher for the publication of his future works of clearly specified kinds shall be lawful. Such right shall be limited, for each kind of work, to five new works as from the day of signature of the publishing contract concluded for the first work or to works produced by the author within a period of five years from that same date. This makes it difficult to have a blanket open-access policy. I'm not certain whether an opt-out clause would be enough to avoid the above restriction. Additionally, France has the moral right of retraction allowing the author to withdraw granted rights of use under strict conditions (L121-4). French moral rights can't be waived so it's futile to account for it in a policy, but it's something to be aware of when implementing an open-access system. In Germany, while there are some protections for future unknown types of use, the scope is fairly well defined here. This puts the situation squarely under Section 40: (1) A contract in which the author undertakes to grant rights of use in future works which are not specified in any way or are only referred to by type shall be made in writing. The contract may be terminated by either party after a period of five years following its conclusion. The term of notice shall be six months, unless a shorter term is agreed. I therefore don't see an issue with this in Germany provided that the policy is specifically agreed to and is renewed with faculty at least every 5 years. Legislated open-access Whether or not the university implements a lawful open-access policy (which is challenging in France...), the author has another available option. Both Germany (Section 38(4)) and France (L533-4 I. of the Research Code) have legislated a limited form of open-access that the author has a right to. While the laws are slightly different, they boil down to the following: After publication in a journal, the author may publish the article in an open-access manner after an embargo period of at most 12 months notwithstanding any exclusive rights transfer to a publisher, provided that the research was at least half funded by public funds.
A copyright notice like that could mean the authors are claiming copyright in different portions of the work, or claiming a joint copyright. With the former, standard copyright law applies with respect to each part, so I'm going to examine the joint copyright aspect. Broadly speaking, joint works tend to be an unclear and internationally inconsistent area of copyright law and you haven't specified jurisdiction. Since this is an English language site and the US and UK are polar opposites on most of these issues, those will be the jurisdictions I examine. US Definition: To qualify as a joint work, each author's individual contribution must be inseparable or interdependent, and the authors must intend to be joint authors (17 U.S.C. s 101, Childress v. Taylor, Erickson v. Trinity Theatre, Inc.). Rights of use: Joint authors can independently exploit and license a work without consent of other co-authors, but have a duty to account profits to co-authors (House Report No. 94-1476 (1976), Goodman v. Lee, Community for Creative Non-Violence v. Reid, etc.). UK Definition: To qualify as a joint work, each author's individual contribution must not be distinct, they must work towards a common design, but no specific intention of joint authorship is required (Copyright, Designs and Patents Act 1988, Art. 10(1), an 11-factor test was articulated in Martin v. Kogan para. 53 by the E&amp;W Court of Appeal). Rights of use: Joint authors must seek consent of the co-authors in order to exploit and licence a work (Cescinsky v. George Routledge &amp; Sons, Ltd., Hodgens v. Beckingham). For further information, see this excellent paper by Elena Cooper comparing how US and UK law diverged on this point.
There is no general prohibition against taking down material, even non-infringing material, which is posted by some person, but there is a risk to the service provider. Abstracting away from the specifics of github, a Provider has some agreement with the User whereby User rightfully makes Stuff available on Provider's site. Arbitrarily removing Stuff (in violation of the usage agreement) may cause damage to User, who may sue Provider, and Provider will avoid that if possible. DMCA protects Provider from copyright infringement suits by Victim, providing the proper DMCA procedure is followed, and it allows Provider to remove Stuff without fear of getting sued by User (17 USC 512(g)). This protection is not available if the takedown notice is not proper. (As a case in point, the entire series of Harry Potter books is still out there freely on the internet, because only the rights holder can demand a takedown, and the rights holder seems to not be concerned).
Copyright in the US is usually a civil matter. Meaning that the copyright owner can sue (typically for money damages or injunctive relief) an infringer. The criminal laws that we have are aimed at the reproducer and/or distributor. In other words, chances are that you won't get in any criminal trouble for accessing academic articles of dubious origin. But never say never. RIP Aaron Schwartz.
I can't answer for the Indonesian law specifically. But in general, under most international copyright schemes, a translation is considered a copyrightable work. This means that even if the original work (in this case, the Quran and Hadith) is in the public domain, derivative works based on that public domain work can still be copyrighted by their creators. This includes, for example: A song with lyrics taken from the Quran A play or movie dramatizing stories from the Quran A novel retelling a story from the Quran In all of these cases, the author has built something new, based on the public domain framework. Because they contributed something original, they are entitled to a copyright on their original contribution. They can't stop someone from copying the Quran themselves, but they can stop someone from copying their original work based on the Quran. Most copyright courts--again, I don't know about Indonesia specifically--will treat a translation the same way. A translation is an original work that requires creativity and skill--otherwise Google Translate would work a lot better than it does. Just like a movie based on the Quran, a translation based on the Quran will probably be copyrightable under most, if not all, countries' copyright laws.
It depends on the nature of the quote. Quotes from Buddha, Aristotle and Lincoln are out of copyright. Otherwise, the two basic questions are: who put that quote in fixed form, and is copying it "fair use"? If for example you happen to be at a political rally where a politician makes a noteworthy extemporaneous quote, you could be the copyright holder, because copyright law protects the person who first puts the work into fixed form. (If he's reading from prepared text, the speech writer or his employer would hold copyright). You can also quote small bits from any source, such as "Don't think about your errors or failures; otherwise, you'll never do a thing". It would not be "fair use" to chop up a novel into a sequence of 2-3 sentence quotes. This assumes that you manually assemble the quotes from legal sources, such as a print copy of "The Martian". Whether or not you can legally pull the data from an online source depends on the terms of service for that site. That lets out brainyquote as a source, so check the TOS for whatever source you get the material from.
We cannot and will not try to answer &quot;what should i do?&quot; questions here. Nothing in the linked page makes me think that the views expressed in the previous question here are any less correct. They certainly have not changed the law on copyright. The linked page is an open forum. Many of the posts o9n that thread express ill-informed and incorrect views of how copyright works, and what it protects. Several google searchs find no trace of the suit described in the thread. Note that in US law no copyright claim may be heard in a small claims court, except for the federal copyright office's small claims tribunal. I am not sure if the same is true in Canada, but it might be that the suit was simply dismissed on such a basis. In any case small claims cases do not establish legal precedents in Canada or the US. Of course it is true that anyone can sue over almost anything, even when there is no valid legal basis for the suit. If the suit had been won by the claimant, or even settled that would be larger grounds for worry. A person seriously worried over publishing a book such as that described in the question might do well to consult a lawyer with relevant expertise. A single consultation plus an opinion letter might not cost very much. But 17 USC 102 (b) is very clear that copyright never protects facts, as are the copyright laws of other countries. Note that reports of the events of sports matches are not protected by copyright, although expressive language and analysis may be. 17 USC 102 (b) reads: (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. Article 2 paragraph (8) of the Berne Copyright Convention provides that: (8) The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information. There seems little room for copyright protection of the moves of chess games.
Wikipedia, at least the English-language edition of Wikipedia, takes the position that what applies to it is US copyright law. Under that law, anything published in 1924 is now in the public domain, and anything published first in the US, or simultaneously in the US and another country with no copyright notice prior to 1978 (the effective date of the 1976 Copyright Act) was never protected by copyright, but was in the public domain from the date of publication. See &quot;Copyright Term and the Public Domain in the United States&quot;. Beyond that, the statement quotes would seem to be, in effect, a license permitting free but non-commercial use. That alone would not normally permit Wikipedia use, except under a claim of fair use. So Wikipedia use would be based on the date of publication, or the absence of a copyright notice, or both. As a long-term Wikipedia editor, I am confident that the images described would be usable in Wikipedia articles. They might or might not be up-loadable to Wikimedia commons, but I think they would be. The question of US Federal Government authorship is a distraction, this work would be in the public domain if the US Govt had no role in creating it.