Open Access. In some quarters of the Open Access movement, some confusion has arisen with respect to copyright law and the many iterations through which an article goes. The comments that follow describe how U.S. law looks at "pre-prints" - the version of an article first submitted to a publisher, and "post-prints" - the author's final manuscript incorporating changes made after peer review. I wrote these comments in response to the question whether an author could grant a Creative Commons license to use a pre-print after having signed away all rights under copyright to a publisher. These comments are for your information and are not legal advice.
The short answer is no, an author cannot grant a Creative Commons license in a pre-print after having signed away all rights in the article in a publication agreement.
Although technically distinct, the copyrights in the pre-print and the post-print overlap. The important point to understand is that copyright grants the owner the right to control exact duplicates and versions that are "substantiallysimilar" to the copyrighted work. (This is under U.S. law, but most other jurisdictions similarly define the scope of copyright).
A pre-print will normally be substantially similar to the post-print. Therefore, when an author transfers the exclusive rights in the work to a publisher, the author precludes herself from making copies or distributing copies of any substantially similar versions of the work as well.
[For example, the singer John Fogerty of Credence Clearwater Revival famewas sued by a record company, which had acquired the copyright in his song"Run Through the Jungle". The company claimed that Fogerty's later song"The Old Man Down the Road" was substantially similar to the former song and that Fogerty had therefore infringed the copyright that Fogerty had signed away.]
Consequently, whether an author may grant the public a Creative Commons license depends upon the rights the author has at the time of the grant. If the author grants a Creative Commons license in the article prior to transferring copyright to the publisher, the publisher takes the copyright subject to that license. But before doing this, authors should read the terms of the publication agreement they are signing. Some of these agreements call upon the author to assign all rights under copyright,which the author cannot do if he or she has previously granted a license.
Even when the copyright transfer agreement has such a provision, however,publishers will sometimes agree to take the copyright subject to a previously-granted license. For example, every researcher who accepts money from NIH or any other U.S. government agency grants to the U.S.government a non-exclusive license to publish and reproduce the work. This license is granted prior to any agreement that the author enters into with a publisher and therefore published papers funded by NIH research are subject to the USG's license.
Publishers are fully aware of the government's license and therefore the terms of any copyright agreement signed by a USG-funded researcher that purports to give all rights to the publisher has to be interpreted accordingly.With that background, let's return to the original question. Once an author signs a publication agreement, can that author grant a CreativeCommons license in the pre-print?
It depends upon the terms of the agreement, as modified by any addenda. Currently, under most publication agreements, the author does not retain sufficient rights to grant a Creative Commons license in either the post-print or the pre-print after transferring copyright to the publisher.Of course, the author retains the right that all members of the public have to make a fair use of the article or exercise a fair dealing privilege, but it is unclear whether this privilege would permit posting of the pre-print without authorization from a publisher that owns thecopyright in the post-print.