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 not
possible at law) any and all moral rights they may now or in the future hold
in connection with the Contribution and the Supplementary Information.
I don’t think most publishers require authors to waive moral rights (I have actually added them in to a publication contract), and insisting on doing so is a serious threat to core academic values.  Moral rights are recognized by most countries of the world (including the UK, where NPG has its corporate offices) and usually include two basic rights — the right of attribution and the right to preserve the integrity of one’s work.  The United States is something of an outlier in that we do not have a formal recognition of moral rights in our copyright law, although we always assert that these values are protected by other laws.  But my point here is to wonder why NPG requires all of its authors to waive their right of attribution.  This is not an incidental matter; the clause is carefully structured to attempt to get authors even from the countries that do not allow the waiver of moral rights — they are considered that important –  still to promise not to assert those rights (whether or not that would be enforceable in those countries).  Nature actively does not want its authors to be able to insist that their names always be associated with their work.  Why?  Does NPG imagine reusing articles it is given to publish in other ways, without providing proper attribution?  If this seems like a remote possibility, it remains the only conceivable reason that NPG would insert this bizarre clause.
So this week I discovered two ways in which Nature Publishing Group is actively attacking core academic values.  First, by trying to interfere in academic policy decisions made through independent faculty governance processes.  Second, by trying to exempt themselves from the core principle of scholarship that scholars should get credit for the work they do.  Authors publish with Nature because they believe that the brand enhances their reputation.  But by giving NPG the ability to disassociate their work from their name, that value of the Nature brand is lost.  Why would any author agree to that?
Starting with those silly demands for a waiver of the open access policy, I discovered a much deeper threat being posed to our faculty authors.  With each waiver request I now have to have a conversation with all authors who publish with NPG.  I will use those conversations as an opportunity to encourage self-archiving.  But I now know that I also must warn authors that by signing the NPG license they are giving up the most precious thing they have — the right to get credit for their work.  I hope many of our authors will reconsider signing that license unaltered.  Since NPG has singled us out, I will now be singling out NPG for its especially egregious attack on fundamental academic values.

 

 

15 Responses to Attacking academic values

  1. I am very concerned about the requirement for waivers also from the same publishers to which we pay large subscription fees. NPG and AAAS come to mind, but there are others. Our institutions’ authors are writing articles for these publications, and we are buying back the content via large subscription fees. For those same publishers to require waivers from our OA policies simply for authors to be able to deposit postprint (accepted manuscript) versions in our institutional repository seems quite outrageous. With repositories linking self-archived versions BACK to the publishers’ versions, traffic is likely being driven back to these publishers.
    Instead of the waiver requirement, maybe institutions should issue requirements of their own. Why not make the ability to self-archive postprints in the institutional repository a part of subscription negotiations? Is this too much to ask for continuing support of subscription products?
    While NPG and AAAS are, just this week, advertising their new OA publication outlets, sending out positive-OA PR, they are also sending out waiver notices.
    Thank you for bringing attention to these practices and for clarifying the legal issues surrounding the issuance of waivers.

  2. Joachim Schöpfel says:

    Waiving moral rights appears absurd, and not only for French authors. In most of Europe, authors can’t assign or even waive their moral rights. They can agree not to enforce them. Yet these rights are considered as fundamental for the creation of work of the mind, and the relationship between an academic publisher and its author should respect this.

  3. orcmid says:

    I agree that the entire effort is clumsy and will likely have valuable unintended consequences for NPG.

    On the other hand, I think the waiver of moral rights is being a little narrowly construed. It is not entirely about attribution. My understanding is that it is about disparaging derivatives and also the ability to require that attribution be removed.

    In any case, requiring an exclusive license is truly awful.

  4. Charles Oppenheim says:

    Sadly not in UK law, but in the laws of many other European countries, one cannot waive moral rights, nor can one agree not to assert them, because they are automatic and don’t require “assertion”. In any case, imposing any restrictive clause on an author AFTER acceptance of the paper, when the contract between author is publisher is in effect complete, has no legal validity. Equivalent is if you buy some apples and whilst you are walking out of the shop the shopkeeper says “By the way, you are not allowed to eat them”. Too late. The deal has already occurred. NPG are not merely being unpleasant, they also have an incompetent lawyer (if they consulted one at all).

  5. Charles Oppenheim says:

    Also, ironically enough, in the one country where you are obliged to assert Moral Rights if you want them (the UK), you cannot get Moral Rights for magazine and journal articles anyway. Total FAIL by NPG’s lawyers.

  6. Grace Baynes says:

    Kevin, I’m posting this as a comment here to provide clarity for all, given the interest this has generated. I’ve also written to you to suggest a conversation. I am sorry that we didn’t talk with you before we started requesting waivers from authors at Duke University, that would have been better all round.

    You raise two concerns: about our requesting that authors provide formal waivers of Duke University open access policy; and the ‘moral rights’ statement in our license to publish. I’ll start with the second.

    We take seriously our responsibility for the integrity of the scientific record. The “moral rights” language included in the license to publish is there to ensure that the journal and its publisher are free to publish formal corrections or retractions of articles where the integrity of the scientific record may be compromised by the disagreement of authors. This is not our preferred approach to dealing with corrections and retractions, and we work with authors and institutions to seek consensus first.

    We always attribute articles to authors, we have clear contribution policies. See: http://www.nature.com/nature/journal/v399/n6735/full/399393b0.html and http://www.nature.com/authors/policies/authorship.html

    We believe researchers should be credited for their work, and as a founding member of ORCID, we have implemented ORCID integration on nature.com to foster disambiguated accreditation.

    We are requesting waivers from Duke University authors, because of the wide grant of rights as per your open access policy. If we do not request a waiver, Duke University has the rights not only to archive in Dukespace, but to publish and distribute the final version of a subscription article freely to the world at large, in any medium, immediately on publication. We started requesting waivers recently, following an enquiry from a Duke University author.

    NPG is supportive of open access. We have no problem with you archiving accepted manuscripts in DukeSpace, for public access six months after publication. We encourage self-archiving, and have done so since we implemented our policy in 2005: http://www.nature.com/authors/policies/license.html

    This is in addition to open access publication options available on many journals we publish.

    We are happy to try to answer further questions, and would welcome a discussion with you. We have worked constructively with PubMed Central and institutional repositories for many years, and do not want our intentions and commitment to academic integrity and open access to be misunderstood.

    Grace Baynes
    Head of Communications, Nature Publishing Group

  7. Elizabeth says:

    Great article, Kevin! I appreciate your diligence in bringing to light the heavy handed bullying of the major publishers.

  8. A concerned reader says:

    Grace:

    That explanation about moral rights smells like a rat. Although I appreciate that you responded to the problem directly and clearly, your answer doesn’t explain the attempt to acquire ALL moral rights. If you only want that for use in one limited circumstance, why not use a clause that applies only to that limited circumstance?

    Furthermore, since the clause you have is of questionable legality for authors in many countries, it would only be a successful strategy for a portion of cases in which you sought to use it. How do you deal with the problem situation you describe when it involves authors from countries whose laws recognize moral rights regardless of choices to exercise?

    Although I can see the reason behind your stated desire, even then it seems like what you ask is more dangerous than what you seek to correct for. This is a departure from the norm that you should alert your authors of front and center. The fact that it is buried in contradictory-sounding legalese betrays NPG’s lack of honesty.

    Sincerely,
    A concerned reader

  9. Charles Oppenheim says:

    Grace’s reply completely misses the point. Why upset and alarm the scholarly community by demanding waivers of Moral Rights when (a) Moral Rights do not apply to journal articles authored in USA or UK, and (b) Moral Rights cannot be waived for authors in continental Europe? Instead, simply have a clause which states that when, in the reasonable opinion of NPG, a published output requires amendment or retraction, NPG and the author shall enter into good faith negotiations to resolve the issue, but if the issue cannot be resolved, then NPG has the final say.

  10. Theodor Heinrich says:

    Dear Grace,

    I’m a research affiliate at TUM, Germany and I completely disagree with you. Allow me to use very plump and direct language to address your main point:

    “[...] Duke University has the rights not only to archive in Dukespace, but to publish and distribute the final version of a subscription article freely to the world at large, in any medium, immediately on publication.”

    Obviously research that draws from public funds should be made available to the respective public funders (usually the population of one or more countries) without gatekeeper shenanigans. There shouldn’t even be a discussion about that, although some groups like NPG still keep doing it.

    The very point of research is to give it to “the world at large, in any medium, immediately on publication”, and actively preventing this should be criminalised. There is no acceptable reason for such behaviour, only greed and pursuit of personal profit on the backs of others without regard for basic morals.

    Thanks for reading.

    • Janet says:

      As far as I am aware, there isn’t a publisher that *prevents* immediate dissemination to the world at large. (There may be individual journals for a publisher that don’t have that option).

      But at the same time, there are substantial costs in publishing and distributing to the world. We may disagree on how large those costs should be, what services are required, and what profits are reasonable – but costs will always exist.

      So somebody needs to cover those costs – and if the funders (/authors) don’t take the option to cover them up front, then the journals will have to reclaim the costs post-publication (using the rights that they have been given to do so).

      You can’t simply point fingers at the publishers, when funders and authors are choosing to supply/support that system.

  11. Martin Johnson says:

    I’m sorry but with Nature you don’t have the right to immediate publication, you have the right to self deposit after 6 months.
    If you want immediate publication then you can publish in another journal that allows that. But of course you will probably have to pay thousands of dollars to do so.
    You choose to publish with Nature and they choose to publish it. Noone is being forced to do anything they haven’t already chosen to do.

    Don’t forget that NIH rules for public funded open access is 12 Months. Much less generous than what happens in Europe. And it’s certainly not free and immediate everywhere.

  12. Grace stated the reason NPG is requesting waivers is because “Duke University has the rights…to publish and distribute the final version of a subscription article…” The NPG policy to which she refers states “authors are encouraged to submit the author’s version of the accepted paper (the unedited manuscript) to PubMedCentral…six months after publication. In addition, authors are encouraged to archive this version of the manuscript in their institution’s repositories…also six months after the original publication.”

    Duke’s Policy on Open Access to Research (http://provost.duke.edu/wp-content/uploads/FHB_App_P.pdf) states “each faculty member will make available, as of the date of publication or upon request, an electronic copy of the final author’s version of the article…The Provost’s Office will make the article available to the public in Duke’s open-access repository.”

    Assuming Duke would honor the 6-month embargo requested by NPG, is the real point of contention an unedited manuscript as allowed by NPG versus the final manuscript as requested by Duke?

  13. These waiver provisions would be especially prejudicial to Canadian authors, as they have moral rights in their works including the rights of integrity and association. While these rights are not assignable, they are subject to waiver. The right to the integrity of a work is infringed if the work is (to the prejudice of the author’s honour or reputation) either (a) distorted, mutilated or otherwise modified; or (b) used in association with a product, service, cause or institution.

    The publisher says they need the waiver “to ensure that the journal and its publisher are free to publish formal corrections or retractions of articles where the integrity of the scientific record may be compromised by the disagreement of authors.” In that case they should craft a narrow clause limited to that purpose, they do not need a full moral rights waiver.

    Samuel Trosow, Associate Professor
    University of Western Ontario
    Faculty of Law / Faculty of Information & Media Studies

  14. […] Requires Faculty Authors to Waive ‘Moral Rights’ (from the Chronicle of Higher Education) and Attacking Academic Values (from the Scholarly Communications @ Duke […]