A template for authors’ rights, and a modest proposal

The Association of Research Libraries has just released an article written by Ben Grillot, a librarian and law student working as an intern for ARL, that is advertised as a summary of the policies of twelve publishers toward deposit of NIH-funded research articles into PubMed Central. In fact, Grillot’s article has a value well beyond the modest comparisions announced by its title.

I won’t attempt to summarize Grillot’s analysis or conclusions here; he writes so clearly and concisely that any summary would seem awkward and wordy in comparison. Suffice it to say that Grillot does a superb job of limning the ambiguities that need to be resolved as publishers come to terms with the new NIH public access mandate, as well as the competitive advantage that will be gained by those who resolve those unclear points quickly and fairly. The easier deposit in PubMed Central is made, the more a publisher will stand out from the crowd. But beyond its comparative analysis, Grillot’s article provides a kind of template that authors should consider whenever they are confronted with the choice of publisher for their research and with a publication agreement. His lucid explanation of the various provisions in the selected agreements, which themselves are usually far from lucid, offers a model for what questions a scholarly author should ask of the agreements she sees and how she should think about the way those questions are, or are not, answered.

Two quick points struck me as I read Grillot’s article beyond those conclusions that he reaches. First, I think many authors would be very surprised at just how limited their rights to make their own work available to others are when they sign publication agreements. We are often told that “most” publishers now support open access. But most also impose an embargo on such access, and during that embargo an author is often not able to place her own work on her personal website (about half the journals do not allow this, at least for the final author’s version), and is very unlikely to be able to post the work to a disciplinary website or institutional repository (7 or 8 of the 12 journals examined by Grillot do not allow this). The very limited set of open access rights retained by authors under these standard publication agreements argues forcefully for the approach taken recent by the Harvard Arts and Sciences faculty to grant Harvard a license for use in an institutional repository prior to any transfer of copyright to a publisher.

The second thing that caught my attention is the brief notation, in a footnote to table 2, that Oxford University Press charges authors more for participation in their “author pays” open access program if the author is affiliated with an institution that does not subscribe to Oxford’s journals. Authors’ rights are thus directly and explicitly tied to institution’s expenditure of monies with that publisher. No doubt this linkage between authors’ rights and institutional subscription makes business sense to Oxford, and far from criticizing it, I suggest that institutions emulate it. Whenever we negotiate a new contract for a journal database, whether a new acquisition or a renewal, we should insist that the rights that authors at our institutions who publish with that publisher retain are spelled out. For some of us it has seemed inopportune to tie the rights of individual scholarly authors to our enterprise-wide subscriptions, but it is starting to seem more and more logical. The decision by Oxford to link its grant of authors’ rights to the institutional purchase of its products convinces me that it is now time for our library acquisitions departments to start insisting that that linkage become a two-way street.