I hope it was clear, when I wrote about the press release from Elsevier addressing their new approach to authors’ rights and self-archiving, that I believe the fundamental issue is control. In a comment to my original post, Mark Seeley, who is Elsevier’s General Counsel, objected to the language I used about control. Nevertheless, the point he made, about how publishers want people to access “their content,” but in a way that “ensures that their business has continuity” actually re-enforced that the language I used was right on the mark.
My colleague Paolo Mangiafico has suggested that what these new policies are really about is capturing the ecosystem for scholarly sharing under Elsevier’s control. As Paolo points out, these new policies, which impose long embargo periods on do-it-yourself sharing by authors but offer limited opportunities to share articles when a link or API provided by Elsevier is used, should be seen alongside the company’s purchase of Mendeley; both provide Elsevier an opportunity to capture data about how works are used and re-used, and both reflect an effort to grab the reins over scholarly sharing to ensure that it is more difficult to share outside of Elsevier’s walled garden than it is inside that enclosure.
I deliberately quote Mr. Seeley’s phrase about “their content” because it is characteristic of how publishers seem to think about what they publish. I believe it may even be a nearly unconscious gesture of denial of the evident fact that academic publishers rely on others — faculty authors, editors and reviewers — to do most of the work, while the publisher collects all of the profit and fights the authors for subsequent control of the works those authors have created. That denial must be resisted, however, because it is in that gesture that the desire for control becomes outright disrespect for the authors that publishing is supposed to serve.
Nowhere is this disrespect more evident than in publisher claims that the works they publish are “work made for hire,” which means, in legal terms, that the publisher IS the author. The faculty member who puts pen to paper is completely erased from the transaction. To be clear, as far as I know Elsevier is not making such a claim with its new policies. But these work made for hire assertions are growing in academic publishing.
Three years ago I wrote about an author agreement from Oxford University Press that claimed work made for hire over book chapters; that agreement is still in use as far as I am aware. At the time, I pointed out two reasons why I thought OUP might want to make that claim. First, if something is a work made for hire, the provision in U.S. copyright law that allows an author or her heirs to terminate any license or transfer after 35 years simply does not apply. More significantly, an open access license, such as is created by many university policies, probably is not effective if the work is considered made for hire. This should be pretty obvious, since our law employs the legal fiction that says the employer, not the actual writer, is the author from the very moment of creation in work made for hire situations. So we should read these claims, when we find them in author agreements, as pretty direct assaults on an author’s ability to comply with an open access policy, no matter how much she may want to.
As disturbing as the Oxford agreement is, however, it should be said that it makes some legal sense. When a work is created by an independent contractor (and it is not clear to me if an academic author should be defined that way), there are only selected types of works that can even be considered work made for hire; one of them is “contribution[s] to a collective work.” So a chapter in an edited book is at least plausible as a work made for hire, although the other requirement — an explicit agreement, which some courts have said must predate the creation of the work — may still not be met. In any case, the situation is much worse with the publication agreement from the American Society of Mechanical Engineers (ASME), which was recently brought to my attention.
ASME takes as its motto the phrase “Setting the Standard,” and with this publication agreement they may well set the standard for contemptuous maltreatment of their authors, many of whom are undoubtedly also members of the society. A couple of points should be noted here. First, the contract does claim that the works in question were prepared as work made for hire. It attempts to “back date” this claim by beginning with an “acknowledgement” that the paper was “specially ordered and commissioned as a work made for hire and, accordingly, ASME is the author of the Paper.” This acknowledgement is almost certainly untrue in many, if not most, cases, especially since it appears to apply even to conference presentations, which are most certainly not “specially commissioned.” The legal fiction behind work made for hire has been pushed into the realm of pure fantasy here.
What’s more, later in the agreement the “author” agrees to waive all moral rights, which means that they surrender the right to be attributed as the author of the paper and to protect its integrity. Basically, an author who is foolish enough to sign this agreement has no relationship at all to the work, once the agreement is in place. They are given back a very limited set of permissions to use the work internally within their organization and to create some, but not all, forms of derivative works from it (they cannot produce or allow a translation, for example). Apparently ASME has recently started to disallow some students who publish with them to use the published paper as part of a dissertation, since most dissertations are now online and ASME does not permit the writer to deposit the article, even in such revised form, in an open repository.
To me, this agreement is the epitome of disrespect for scholarly authors. Your job, authors are told, is not to spread knowledge, not to teach, not to be part of a wider scholarly conversation. It is to produce content for us, which we will own and you will have nothing to say about. You are, as nearly as possible, just “chopped liver.” It is mind-boggling to me that any self-respecting author would sign this blatant slap in their own face, and that a member-based organization could get away with demanding it. The best explanation I can think of is that most people do not read the agreements they sign. But authors — they are authors, darn it, in spite of the work for hire fiction — deserve more respect from publishers who rely on them for content (free content, in fact; the ASME agreement is explicit that writers are paid nothing and are responsible for their own expenses related to the paper). Indeed, authors should have more respect for themselves, and for the traditions of academic freedom, than to agree to this outlandish publication contract.
Thank you, Kevin, for this much-needed analysis. In the past I have made the point that we don’t need to describe legacy barrier-based publishers like Elsevier as “evil”: they are just doing what they do, like a shark does, and are arguable as morally neutral. We need to mitigate their effects, and ultimately simply walk away from them; but we don’t need to condemn them.
But ASME has crossed a moral line here. What they’re doing is not just ill-informed or self-interested. It’s contemptuous and contemptible. It’s evil, in fact. It makes me want to take up mechanical engineering just so I can refuse to publish my work with them.
Kevin is right to point out that “work-for-hire” provisions may be appropriate in certain circumstances– in my view perhaps for certain types of books– for reasons such as the collective work issue mentioned (which also has an impact on copyright registration). I don’t personally think the language is necessary in book agreements (Elsevier does not use it, although I suspect some of our acquired entities might have used such language for book contracts at some point). Elsevier does use copyright transfer language in book contracts, but we have a “retained rights” section even for book content similar to language we have in our journal publishing agreements and the sharing/hosting policies. Book content of course is often “commissioned” by the publisher, so a “work for hire” approach isn’t in my view crazy.
I agree the dynamics are different in journal publishing, and we wouldn’t use such language in our journal agreements for the reasons noted (the work on a scholarly paper is obviously initiated by the researcher-author). However, other than in the Gold OA context, we do request copyright transfer also for journal content– we believe that this enables, without ambiguity, our ability to distribute the work in new technologies, do further re-distribution, and also to do enforcement work. There are always exceptions, of course, for example for US government employees and the like.
Can’t pass by without commenting on the question of “control”— so first although we are really keen on Mendeley, it isn’t the only social platform out there, and our new sharing/hosting policies are intended for all such platforms, and for that matter repositories etc…
Second, it should be obvious but we are in the business of distributing content– we want it to be in as many venues as possible– I know it’s popular to talk about works being chained behind the “paywall” but in the case of academic libraries and scholarly publishing– that’s a really big wall. I think it’s completely obvious that the average academic library, even in a time of strained budgets, has substantially more access to scholarly content now than was the case in the print environment.
Third, the policies we just announced fit in with a whole range of means by which journal articles in different states and versions can be posted and used. Preprints for example– or Elsevier journals that make final published articles open after the first year of publication (such as Cell). In my view, these policies show a nuanced approach to rights management and is far from “content locking”.
Finally, copyright is a funny animal compared to IP rights such as patents– it has more qualifications, limitations and exceptions than exist in the world of patents (de minimmis copying; idea/expression dichotomy; quotation and fair use)– and most STM publishers are also mindful of striking some kind of balance that works in tandem with researcher-initiated scholarly activities (so re-use of content in later academic works, for example). Copyright does have a long term these days, it is true, but in the current climate we are now talking about very short periods of time, and over very specific forms and versions.
Mark
Mark Seeley writes:
It pains me to see something to transparently misleading coming from so informed a person. As Mark Seeley obviously knows perfectly well, there is no difficultly whatsoever in drafting an author agreement that gives a journal all necessary distribution rights without requiring the author to transfer copyright.
One of many journals that do this is Zoologica Scripta, a subscription journal published by Wiley, whose authors used to retain copyright, and for which copyright is now owned by the Royal Swedish Academy of Sciences. (This may not be a satisfactory state of affairs for authors, but clearly shows the idea that the publisher needs copyright to be a fiction.)
Indeed there are: publishers are perfectly capable of publishing public domain works even in subscription journals, and have been doing so for many decades.
In short, the idea that publishers need copyright is wholly unsupported by any evidence, and emphatically disproven by multiple exceptions.
Mark Seeley’s statement that a journal publisher requires the transfer of copyright in order to make changes to content demanded by technology innovations and to enable distribution is nonsense. That can built into a licence agreement trivially easily, leaving the author the copyright owner. Give it a try, Mr Seeley! You are used to drafting contracts. As for doing “enforcement work”, the whole point is that scientists WANT their work to be widely distributed, and in any case, I am not aware of numerous cases of publishers doing such enforcement work…..
The “future technology” issue is a serious one, Charles– particularly in jurisdictions such as France and Germany. Re enforcement, I’d hope scientists (and you) agree that distribution is different from commercial piracy.
Thank you for posting this, Kevin. It was particularly timely as I’m working with a faculty member now who just received the OUP “work-for-hire” book chapter agreement.
It’s disappointing to think that it’s still in use 3 years after you first blogged about it; makes me wonder if author’s are not pushing back on it at all. There is something very wrong with a system that required you to give away your work to be acknowledged for doing it.
We need to mitigate their effects, and ultimately simply walk away from them; but we don’t need to condemn them.
But ASME has crossed a moral line here. What they’re doing is not just ill-informed or self-interested. It’s contemptuous and contemptible. It’s evil, in fact. It makes me want to take up mechanical engineering just so I can refuse to publish my work with them.
Thank you