A thought about the copyright of legacy publications

At last week's (March 1, 2007) „Open Access – From the principles to the implementation“ meeting, organized by the Swiss Academy of Humanities and Social Sciences (summary), Bas Savenije from Utrecht University made a very interesting comment regarding copyright of pre-digital articles.

1. Before the advent of the Internet, nobody did sign any contracts regarding the digital copies and their distribution.
2. The large publishers, ie Elsevier or Blackwell (now Wiley) scan in all their back issues without asking the individual owners, that is the authors.
3. Since they do not ask the authors, and we authors didn’t sign a respective contract, we do not need to ask the publishers to allow us using digital versions of our publications to disseminate them over the Internet.

This essentially restricts copyright of publishers for articles to a period before roughly 1996, or when the first digital publication showed up, which is also individually for each journal.

According to Peter Suber, “When this question came up in the US (for journalists, not scholars), the Supreme Court decided in favor of the authors. That is, if their old contracts didn't mention electronic rights, then the authors didn't transfer the electronic rights to the publisher”.