Last week BioOne unveiled its new “Model Publication Agreement,” with an announcement that ought to generate more attention than it has. BioOne is “ a collaboration between scientific societies, libraries, academe and the private sector [that] brings to the Web a uniquely valuable aggregation of the full-texts of high-impact bioscience research journals.” The decision to create a model publication agreement grew out of the perceived need to help some of its publishers, especially the scholarly societies, deal with the legal complexities of publishing in the digital age. The model agreement was drafted for BioOne by an attorney for an intellectual property firm in San Francisco, and it represents a superb and realistic balancing of the needs of author’s and academic publishers.

The core of the model agreement is a double license; the author grants to the publisher both a time-limited exclusive right of first publication and a perpetual, non-exclusive license to publish, distribute and sublicense. Subject to these two licenses, copyright is retained by the author. The model agreement contains a number of options or “fill-in-the-blank” points where publishers can customize the license to fit specific conditions. As an attempt to lower the transaction costs associated with publishing, and as an equitable balancing of needs that do not have to be in permanent competition, this is an excellent model to be followed in academic publishing.

It is unfortunate but predictable that one of the most immediate responses from the publishing community was a very revealing demur to the BioOne model agreement project. A university press director posted his objections within two days of the announcement; his position that the agreement is inappropriate even for academic publishers exposes the growing gap between academic publishing and the values of the academy that supports it.

One complaint is that, without an exclusive right in the published works, the publisher will have no standing to sue putative pirates who want to steal academic work. First, we should note that there will still be a rights holder under the model agreement who can enforce the copyright – the author. The problem is that the author’s interests not only do not coincide with the publisher in some cases, they sometimes conflict. The objecting press director notes that the author may actually benefit from wider distribution by a “pirate,” so one wonders why authors should continue to sign away copyrights to organizations who want to wield them as litigation weapons contrary to the authors’ interests. Copyright is supposed to be an author’s right; its genesis as a publisher’s right (associated with their role in censoring unpopular content) is centuries out of date.

And this brings us to the second revealing question about this objection – who are the pirates we are supposed to fear enough to give up copyright entirely to publishers? In fact, the only “pirates” against whom publishers tend to threaten litigation are the authors themselves and their institutions. The “theft” these publishers want to control is faculty authors passing out copies of their work to their own students or to others on campus, to their colleagues at other institutions, and via their websites. No one seriously expects large-scale republication of scholarly content for profit; all that is being defended by these grabs for exclusive copyright transfer is the traditional, and increasingly expensive, subscription model of access. If there is real danger that subscriptions will be canceled because authors retain their own copyrights, and this has never been shown to be the case, all it would illustrate is that this traditional business model has runs its course and no longer serves the interests of those it was created by and for.

The Ithaka report on university publishing asked presses and their parent institutions to reexamine how well publishing is integrated with the interests and values of the academy and the specific university. The BioOne Model Publication Agreement can help advance that integration, and objections to it are a profound illustration of the problem we need to address.

 

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