A new thing started happening here at Duke this week; we began getting inquiries from some faculty authors about how to obtain a formal waiver of our faculty open access policy. We have had that policy in place for over three years, but for the first time a single publisher — the Nature Publishing Group — is telling all authors at Duke that they must obtain a waiver of the policy before their accepted articles can be published. It is not clear why NPG suddenly requires these waivers after publishing many articles in the past three years by Duke authors, while the policy was in force and without waivers.
Indeed, the waivers are essentially meaningless because of the way Duke has implemented its open access policy. When the policy was adopted unanimously by our Academic Council in March 2010, the statement in favor of openness was pretty clear, but so was the instruction that implementing the policy not become a burden to our faculty authors. So throughout the ensuing years we have tried to ensure that all archiving of published work in our repository be done in compliance with any publisher policies to which our authors have agreed. NPG allows authors to archive final submitted manuscripts after a six month delay, so that is what we would do, whether or not the author sought a policy waiver. But suddenly that is not good enough; Nature wants a formal waiver even though it will have no practical effect. The demand seems to be an effort to punish authors at institutions that adopt open access policies.
There are some comical aspects to this sudden requirement for waivers. As I said, it seems to have taken NPG three years to figure out that Duke has an open access policy, even though we have made no secret of the fact. Even more oddly, the e-mail that our faculty authors are getting from NPG lists nine schools from whose faculty such waivers are being required; apparently it was only four schools until recently. But there are over thirty institutions with faculty-adopted OA policies in the U.S. alone. Some of the largest schools and the oldest policies have not yet showed up on Nature’s radar; one wonders how they can be so unaware of the scholarly landscape on which their business depends. NPG looks silly and poorly-informed, frankly, in the eyes of the academic authors I have spoken to.
In addition to making NPG look foolish, this belated demand for waivers has had positive effects for open access on our campus. For one thing, it simply reminds our authors about the policy and gives us a chance to talk to them about it. We explain why Nature’s demand is irrelevant and grant the waivers as a matter of course, while reminding each author that they can still voluntarily archive their work in compliance with the rights they have retained (which is the same situation as without the waiver). I suspect that this move by NPG will actually increase the self-archiving of Nature articles in our repository.
Another effect of these new demands is that open access and the unreasonable demands of some commercial publishers has gotten back on the radar of our senior administrators. Our policy allows the Provost to designate someone to grant waivers, and, in figuring our who that would be, we had a robust conversation that focused on how this demand is an attack on the right of our faculty to determine academic policy.
This last point is why I have moved, in the past few days, from laughing at the bumbling way NPG seems to be fighting its battle against OA policies to a sense of real outrage. This effort to punish faculty who have voted for an internal and perfectly legal open access policy is nothing less than an attack on one of the core principles of academic freedom, faculty governance. NPG thinks it has the right to tell faculties what policies are good for them and which are not, and to punish those who disagree.
As my sense of outrage grew, I began to explore the NPG website. Initially I was looking to see if authors were told about the waiver requirement upfront. As far as I can tell, they are not, in spite of rhetoric about transparency in the “information for authors” page. The need for a waiver is not even mentioned on the checklist that is supposed to guide authors through the publication process. It seems that this requirement is communicated to authors only after their papers have been accepted. I suspect that NPG is ashamed of their stratagem, and in my opinion they should be. But as I looked at NPG policies, and especially its License to Publish, my concern for our authors grew much deeper.
Two concerns make me think that authors need to be carefully warned before they publish in an NPG journal.
First, because this contract is a license and tells authors that they retain copyright, it may give authors a false sense that they are keeping something valuable. But a careful reading shows that the retention of copyright under this license is essentially a sham. The license is exclusive and irrevocable, and it encompasses all of the rights granted under copyright. It lasts for as long as copyright itself last. In short, authors are left with nothing at all, except the limited set of rights that are granted back to authors by the agreement. This is not much different than publishing with other journals that admit up front that they require a transfer of copyright; my concern is that this one is dressed up as a license, so authors may not realize that they are being just as completely shorn of their rights as they are by other publishers.
My bigger concern, however, is found in clause 7 of the NPG “license,” which reads in its entirety:
The Author(s) hereby waive or agree not to assert (where such waiver is notpossible at law) any and all moral rights they may now or in the future holdin connection with the Contribution and the Supplementary Information.
Policy on Electronic Course Content
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.
Search the Scholarly Communications Blog
- Authors' Rights
- Copyright in the Classroom
- Copyright Information Notes
- Copyright Issues and Legislation
- Digital Rights Management
- Fair Use
- international IP
- Open Access and Institutional Repositories
- Open Access topics
- Orphan works
- Public Domain
- Scholarly Publishing
- Traditional Knowledge
- User Generated Content
- Dave Fernig on Going all in on GSU
- Gretchen McCord on Going all in on GSU
- In Georgia State University E-Reserves Case, Eleventh Circuit Endorses Flexible Approach to Fair Use | ARL Policy Notes on GSU appeal ruling — the more I read, the better it seems
- Paul Callister on Swimming in muddy waters
- Jim Neal on Free speech, fair use, and affirmative defenses