Monday, February 15, 2016

Why Do I Have to Pay to Use My Own Work?

Dear Rich: I have written regular columns, articles, abstracts and summaries of research that I've done for various publications, most often for the Institute of Electrical and Electronics Engineers (IEEE). Recently I wrote something for a Wiley Encyclopedia in which I included several graphs and figures of my own work that had been included in IEEE publications. When I explored how to request copyright permission from IEEE for this purpose, I found that it could cost hundreds of dollars to do this. This is all material that I generated. Why should I have to pay for permission to use my own work?
We can't confirm or deny that you need to pay for permission to re-sell your work but we can look at some factors that will determine the answer.
Are you "using" the work? The way you framed your question implies that you are using the graphs and figures. You may think this is hair-splitting, but we disagree; we think you are selling Wiley the right to use them. IEEE offers some fairly liberal republication rights to contributing authors. For example, under some IEEE publishing contracts, it's possible for authors to reproduce their work at personal websites, employer websites and at funding agency websites. IEEE also makes it possible for authors to reproduce their works under Creative Commons license. What IEEE seeks to avoid, like many publishers, is your sale of the same material for a competing commercial use.
What's in the figures and graphs? Copyright doesn't protect facts, processes or methods, nor does it protect "works consisting entirely of information that is common property and containing no original authorship." So, assuming your charts and figures consist of publicly-available data, you may be free to re-create those charts, perhaps with minor variations in appearance, and in doing so, avoid any claims of infringement. It's also possible you may be able to defend your wholesale use of the charts (without changes) under a theory known as the merger doctrine. The trouble with these types of claims is that your contract with Wiley may require that you warrant that your work doesn't infringe and there is no guarantee that you will prevail if IEEE brings an infringement lawsuit. In general, your chances of success increase the more simplistic the chart -- for example a simple bar graph or pie chart.
What's in your contract? We assume you were not an IEEE employee and that you contracted with IEEE when you originally sold the materials. (If you were an employee, IEEE would likely own all copyright under work made for hire rules.) We also assume that you've reviewed your contracts to be sure what rights you relinquished. If not, you should do so, now. Publishing contracts vary  and although it's a long shot, it's possible you retained some rights, some rights may have reverted to you, or in the case of decades-old contracts that certain electronic rights were never acquired.