It was a rather embarrassing moment. I was in a meeting with other copyright specialists from academic libraries when I received the email telling me that my article with Taylor & Francis had been published. Before I could stop myself, I expressed my surprise out loud, then had to explain to my colleagues that I had just had an article published in a library science journal published by Taylor & Francis, and that I was not expecting it. Two sources of embarrassment here. First, especially following the resignation of the entire editorial board of a different library-related T&F journal due to their archaic authors’ rights policies, this is not a publisher with whom I would have chosen to do business or encouraged authors who consulted me to use. Second, the fact that I was surprised by this news showed that I had been much more lax in my own decisions about publishing than I advise other academic authors to be. It is always awkward to be caught in a “do as I say and not as I do” situation, and especially so when you have to explain it to a respected set of colleagues.
So let me explain how this happened and what lessons can be gleaned from my experience.
The story began when I gave a talk at the 2012 conference of NASIG, the North American Serials Interest Group. Let me say at the start that no one at or representing NASIG did anything wrong in this encounter and that whatever misunderstanding or lack of information existed was entirely my fault. NASIG provided me with an interesting and engaged audience of librarians, which was all I could ask. In any case, I signed an agreement, as a “Vision” speaker (kind of ironic), allowing my talk to be mechanically recorded and also agreeing that a human “recorder” would write up what I said for an article for The Serials Librarian. In due time, that reporter sent me a copy of the article and I agreed that it was a good representation of the talk I had given, ready to be published. Not until the article was published did I realize that The Serials Librarian was a Taylor & Francis journal, and to the best of my recollection I never signed a copyright transfer agreement with T & F. At least, I can find in my saved e-mail the agreement to publish in The Serials Librarian but not a CTA.
Again, neither NASIG nor the article author did anything wrong; they sought and obtained all the necessary authorizations from me. It may well also be the case that the recorder who wrote up the article signed a CTA with Taylor & Francis, which she would have been entirely entitled to do. But as I say, to the best of my knowledge I did not, and the lessons I take from this incident are premised on that recollection.
So the first lesson is obvious — be careful what you sign. More careful than I was. I should have determined who the publisher was and made an intentional decision before I signed that agreement about what would be done with the article that resulted from my talk. It is quite likely that I would have agreed even after that small bit of research, since the article was actually written by someone else (as, I suppose, a derivative work from my original talk), and I had no further plans to use it in any way. What I often tell authors is to consider the agreement they are presented with in light of their own plans and hopes for their work, and transfer or license rights in a way consistent with those plans. If the agreements allow one to meet those goals, well and good; if they do not, negotiation is called for. The decision should rest with the author. In the experience I had, I did not make that decision in an informed way, and that, rather than the ultimate result, was the problem.
The second lesson from this experience is that authors choose journals, not publishers. When I read over the agreement with NASIG, The Serials Librarian seemed like a proper venue for the article resulting from my talk, and I failed to inquire further. Although I should have done, I did not look into the publisher’s identity because for me at that moment, as for many academic authors, it simply didn’t matter. The first step in getting academic authors to pay attention to the rights they transfer or retain is helping them realize that not all publishers are alike in this matter, and that they do need some awareness of who is who.
Next, my little story provides an opportunity to remind readers about the issue of joint authorship. Joint authors are very common, of course, in academia. Once mostly found in the STM fields, digital humanities projects are now making joint authors out of folks from many different departments. Joint authorship arises, of course, whenever two or more people each contribute original expression with the intent of creating a unified work. In the case of my talk, my original expression was fixed in the PowerPoint slides and notes that I had made. Recorder Susan Davis then created a derivative work from that original, adding a great deal of her own original expression. Once I had indicated my assent to that process, she and I became joint authors. Like all joint authors, we each hold an equal and undivided share in the copyright, and are each entitled to exercise the exclusive rights granted by copyright, subject only to a duty to account to each other for any profits (which I don’t expect, in this case). Because of this situation, if Susan signed a copyright transfer agreement for publication of the article, she was perfectly entitled to do so. And because of the potential that fact has to create misunderstandings and surprises for other joint authors, it illustrates how important it is in general that joint authors agree in advance, whenever possible, about how their shared work will be used, licensed and made public.
Finally there is this point — if I am correct that I never signed a copyright transfer, and assuming, for the sake of illustration, that Susan did, then Taylor and Francis and I are now joint holders of the copyright in this article. One thing that means is that I can continue to exercise all the rights as a copyright owner — I could post the article to the web if I wanted to, for example — without consent from T & F. So when publishers tell us that they need to be the exclusive holder of copyright in every item that they publish, it is important to realize that that may be an aspiration, but it is not a necessity. In fact, my experience is only one of a large number of scenarios under which publishers routinely publish articles for which they are not the exclusive rights holders. As we seek to reform the scholarly publishing system, partly by encouraging academic authors to pay better attention than I did in regard to this article, this fact is an important piece of information to remember.
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For help deciding whether course content in Blackboard or some other digital form is fair use or requires copyright permission, consult this policy document adopted by the Academic Council in February 2008.
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