0.8 Online hosting issues and options  (Page 10/11)

There are model author addenda and online author agreement tools available that allow a society publisher to balance author rights and practical publishing requirements. See especially Creative Commons and Science Commons ( (External Link) ), BioOne ( (External Link) ), and the toolkit sponsored by JISC and SURF (http://copyrighttoolbox.surf.nl/ copyrighttoolbox/). The BioOne addendum is especially useful for publishers that must comply with the NIH deposit mandate. Most of the addenda allow the author to retain copyright while granting the publisher a limited license to first publication, and permit the author to make the article available online for non-commercial purposes and to retain rights to use the article for teaching and other academic purposes. Hirtle (2006) provides an overview of five author agreements.

Image copyright

The terms for reproducing digital images are often more complex and fees to reproduce images in digital formats are often higher than is the case for reproduction in print publications. See Ballon and Westermann (2006), 31-37.

The College Art Association’s (CAA) “Guidelines for Copyrights and Permissions in Scholarly and Educational Publishing” (External Link) . contends that the use of reproductive images for the purposes of art historical criticism qualifies as fair use under the provisions of the 1976 Copyright Revision Act. A similar case is made for the “fair dealing” provision in Sections 29 and 30 of the UK 1988 Copyright Act. See Sowden and Morris (2002). Section 107 of the Act enumerates four factors to be considered in the determination of fair use:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purpose; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Based on these criteria, the doctrine does seem to provide protection for the use of images in online scholarly journals to which access is restricted by user authentication systems. In practice, however, the fair use doctrine defies precise definition and cannot be assumed to afford blanket protection on the use of images in online journals. Although the CAA guidelines assert that the fair use doctrine should apply to any scholarly work of criticism, they also acknowledge that, even though a permission request may result in a fee, “the safest course is to obtain permission.” (External Link) . Other authorities argue that excessive caution has its own risks, and emphasize that each case of fair use is unique and must be judged on its own merits. As Susan Bielstein notes, “. . . courts—not publishers, authors, or copyright holders—decide what constitutes an act of fair use, and courts do this case by case.” Bielstein (2006), 80.

In this context, a society publisher (or a group of society publishers) might provide services to assist authors in assessing whether it is necessary to seek permission and in securing permissions and/or negotiating fees where appropriate. For example, a publisher might negotiate scholarly license arrangements with museum collections, archives, and other image providers, as the ARTstor Images for Academic Publishing program has done with the Metropolitan Museum of Art. See (External Link) .