Copyright and legal issues can be managed as part of an institutional publications policy framework.
Copyright and legal issues are key concerns for researchers and for institutions when adopting Open Access. These include any potential infringement of a publishing agreement which has been entered into. In the majority of cases in UK institutions, academic staff are permitted by their institution manage the copyright of their research outputs rather than the institution, this copyright is then usually transferred, by the author to the publisher to enable publication.
What can be deposited into a repository?
A range of terms are used, sometimes confusingly for the published state of papers during its publishing lifecycle.
Two key terms and their definitions for Open Access used by the UK’s RoMEO Publisher copyright policies & self-archiving website clearly  differentiates pre-prints and post-prints:
Pre-print a work before it has been peer-reviewed, edited or prepared for publication by a publisher.
Post-print a work in the form accepted for publication in which the author has incorporated into the text the outcome of peer review. This is also commonly known as the Author Final Version or Author Accepted Manuscript.
There is also the version produced by the publisher which has the typography, layout and journal style applied. It may also include additional editorial changes. Typically this a PDF provided by the publisher.
The majority of publishers will permit a post-print to be deposited into a repository (sometimes subject to an embargo), this is Green open access. It is less common that the publisher’s version can be deposited unless, in many cases the author has paid an additional Open Access fee to ensure that it is made openly available, this is gold open access. Authors may not want to make their preprint available on Open Access because it has not undergone peer-review. This can vary from discipline to discipline.
While deposits should be made to be openly available where possible, the policies of some publishers may prompt an institution or author to make some publications available via a “request a copy button”. These are in place in a number of Institutional repositories including the University of Salford (EPrints)  and the University of Stirling (DSpace) .
Copyright and Publication
Copyright is a complex field for everyone involved in publishing and individual publishers and indeed individual titles from publishers can have different copyright requirements. It is however one of the key legal issues which must be managed.
A UK resource called RoMEO provides clear and comprehensive details of journal publishers and their copyright conditions. Reference to SHERPA/RoMEO provides assurance in decision making and also speeds the deposit process.
Another useful tool is The Copyright Toolbox. This is a resource for both authors and publishers. It has been developed through JISC and the Dutch SURF Foundation. Its aim is to assist the respective parties to achieve a balance of rights which ensures the maximum availability and impact of the journal article for the author and the appropriate remuneration for the publisher.
Licence to publish
It is possible for academic staff (or institutions) to licence their paper for publication rather than to wholly transfer copyright to the publisher. Researchers should select publishers which meet researcher and institutional requirements. If institutions or researchers are unable to negotiate acceptable copyright ownership terms, then they should seek to publish with a publisher which does meet requirements.
The Copyright Toolbox provides a template for a “Licence to Publish” which can be considered as an alternative to the publisher’s own agreement. This licence states that the author wishes to reflect the balance of rights and reserves a number of rights for the author including use for educational purposes, deposit into a repository, preservation and re-use.
Right to Publish (Licensing) – Queensland University of Technology
In June 2011 Queensland University of Technology (QUT) in Australia approved its Intellectual Property Policy in which it asserted its right to ownership of copyright of works (including research publications). QUT then assigns, subject to any third party contractual obligations, the right to publish scholarly works to the creator of that work and includes reserving the right for QUT to use it “for non-commercial purposes via QUT’s open access digital repository” .
As long as the publisher agreement terms are compatible with QUTs Intellectual Property and QUT ePrints policies then the publishing contract can be signed. The expectation in QUT is that any paper published should be available in the repository no later than 12 months after the publication date. Requests for embargoes longer than 12 months are referred to the Deputy Vice-Chancellor (Technology, Information and Learning Support).
The advantage of this approach is that when inconsistencies occur between publishers’ policies and the University’s policy (as copyright owner rather than the author), these can be negotiated by the institution, rather than by the individual author.
1 SHERPA/RoMEO FAQ “I have contacted this publisher and they say they allow pre-prints to be archived, but you claim they allow post-prints, why is your entry wrong?”
2 QUT example of “Contact the author” button
3 University of Stirling example of “request a copy from the author” button
4 Queensland University of Technology D/3.1 Intellectual property policy 3.1.5 Ownership of copyright