Owning the right to open up access to scientific publications

[Chapter published in Open content licensing: from theory to practice, pp. 127-167] 

Copyright ownership in a scientific or scholarly work is probably the most important factor that influences the decision of where to publish the article or the book and, subsequently, under which conditions other members of the scientific com- munity and the general public can use it. Who owns the copyright of the work – the author, the research institution or the publisher? At the European level, one of the main areas of copyright law, which has yet to be fully harmonized, relates to the initial ownership of rights. So far, the rules relating to the initial ownership of copyright have been harmonized only with respect to software, databases and cinematographic works. For all other categories of works, the initial ownership of rights is determined by the law of each Member State. In some Member States, the rules may point to the author himself or, in others, to the research institution employing him. Although the author might be designated by law as the owner of the copyright on his work, he may still be required to transfer his rights to a third party: either to the university or research institution under his employment con- tract, or to the publisher. Just like the rules on initial copyright ownership, how- ever, those relating to authors’ contracts have not been subject to overall harmo- nization within the Community.12 The European legislator has, until now, refrained from intervening on the issue of transfers of rights and of contractual agreements between authors and publishers, because contractual and civil mat- ters have traditionally fallen under the exclusive competence of the Member States.13 Member States may, therefore, have adopted certain protective measures to the benefit of authors regarding either the scope of transfer of rights or the formation, execution, and interpretation of contracts concluded with publishers.