Category Archives: Authors’ Rights

What happens when there is no publication agreement?

Scholarly communication discussions and debates usually focus, quite obviously, on the terms of publication agreements and the licenses those agreements often give back to authors to use their own work in limited and specific ways.  This is such a common situation that it is hard to realize that it is not universal for scholarly authors.  But recently it has come to my attention that some authors actually never sign any agreement at all with their publishers, and in one situation that I will explain in a moment, that led to a dispute with the publisher about whether or not the author could place her article in an institutional repository.  The issue, broadly speaking, is when an implied license can be formed and what such licenses might permit.

In a couple of previous posts, I have discussed the idea of implied licenses: licenses that are formed without an explicit signature, usually because someone takes an action in response to a contractual offer, and the action is clear enough to manifest acceptance of that offer.  One of the most common implied licenses that we encounter underlies the transaction every time we open a web page.  Our browsers make a copy of the web page code, of course, and that copy implicates copyright.  But our courts have held that when someone makes a web page accessible, they are offering an implied license that authorizes the copying necessary to view that webpage.  No need to contact the rights holder each time you want to view the page, and no cause of action for infringement based simply on the fact that someone viewed a page and therefore copied the code, temporarily, in their browser cache.

It is important to recognize that such licenses are quite limited.  An implied license can, at best, be relied upon when doing the obvious acts that must have been anticipated by the offeror, such as viewing a web page.  An implied license would not, for example, authorize copying images from that website into a presentation or brochure; that would be well beyond the scope of an license implied by merely making the site available.  For those sorts of activities, either permission (an explicit license) or an exception in the copyright law would be needed.

So how might implied licensing help us untangle the situation where an author has submitted her work to a journal, and the journal has published it without obtaining an explicit transfer of right or a license?  As I said, this is a reversal of the normal situation, and it caught me by surprise.  But I have heard of it now from three different authors, all publishing in small, specialized journals in the humanities or social sciences.

The way the question came to me most recently was from an author who had published in a small journal and later asked, because she had no documentation that answered the question, if she could deposit her article in an open repository.  The publisher told her that she could do so only after obtaining permission from the Copyright Clearance Center, and she came to me, through a colleague, asking how the publisher could insist on her getting permission if she had not signed a transfer document.  Could the publisher, she asked, claim that the transfer had taken place through some kind of implied contract?

The answer here is clearly no; the copyright law says explicitly, in section 204, that “A transfer of copyright ownership… is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.”  So an implied transfer of rights is impossible; all that can be conveyed implicitly is a non-exclusive license (as in the web site example).

In the case of my author with no publication agreement, she remains the copyright holder, whatever the publisher may think.  At best, she has given the publisher a non-exclusive license, by implication from her act of submitting the article, to publish and distribute it in the journal. This is not really all that unusual. I have written opinion pieces for several newspapers in the past and never signed a copyright transfer; the pressure of daily publication apparently leads newspapers to rely on this kind of implied license quite frequently.  But it is unusual in academia, and requires some unpacking.  No transfer of copyright could have occurred by implication, so the rights remain with the author, who is free to do whatever she likes with the article and to authorize others to do things as well.  The publisher probably does have an implied license for publication, but that license is non-exclusive and quite limited.

As we worked through this situation, three unanswered questions occurred to me, and I will close by offering them for consideration:

  1. Are authors always correct when they tell us they did not sign a publication agreement?  Sometimes an agreement may have been forgotten amidst all the paperwork of academic life, or the agreement might have been online, a “click-through” contract at the point of submission.  We need to probe these possibilities when confronted with the claim that no agreement was signed, but those are very delicate conversations to have.
  2. Returning for a moment to the possibility of a click-through agreement that the author could have forgotten, we might also ask if this type of arrangement, increasingly common among academic publishers, are really valid to transfer copyright.  I am well aware that courts are becoming quite liberal in accepting online signatures and the like, but is there a limit?  Where there is a statute that explicitly requires a signed writing for a specified effect, as the Title 17 does for assignment of copyright, could an author challenge the sufficiency of a (non-negotiable) click-through agreement?  I expect that this issue will eventually come before a court (if any readers who know of such cases, please add the information in the comments), and I will be very interested in that discussion.
  3. Finally, what do we make of the journal’s claim, in the situation I was asked about, that the author must purchase permission to use her own work from the Copyright Clearance Center?  If there was no transfer of rights, the journal has no right to make such a demand and the CCC has no right to sell a license.  This is one more situation where it seems that the CCC is sometimes used to sell rights that are not actually held by the putative licensors, and it renews my concern about whether, and when, we actually are getting value for the money we spend on licensing.

A distinction without a difference

The discussion of the new Elsevier policies about sharing and open access has continued at a brisk pace, as anyone following the lists, blogs and Twitter feeds will know.  On one of the most active lists, Elsevier officials have been regular contributors, trying to calm fears and offering rationales, often specious, for their new policy. If one of the stated reasons for their change was to make the policy simpler, the evidence of all these many “clarifying” statements indicates that it is already a dismal failure.

As I read one of the most recent messages from Dr. Alicia Wise of Elsevier, one key aspect of the new policy documents finally sunk in for me, and when I fully realized what Elsevier was doing, and what they clearly thought would be a welcome concession to the academics who create the content from which they make billions, my jaw dropped in amazement.

It appears that Elsevier is making a distinction between an author’s personal website or blog and the repository at the institution where that author works. Authors are, I think, able to post final manuscripts to the former for public access, but posting to the latter must be restricted only to internal users for the duration of the newly-imposed embargo periods. In the four column chart that was included in their original announcement, this disparate treatment of repositories and other sites is illustrated in the “After Acceptance” column, where it says that “author manuscripts can be shared… [o]n personal websites or blogs,” but that sharing must be done “privately” on institutional repositories. I think I missed this at first because the chart is so difficult to understand; it must be read from left to right and understood as cumulative, since by themselves the columns are incomplete and confusing.  But, in their publicity campaign around these new rules, Elsevier is placing a lot of weight on this distinction.

In a way, I guess this situation is a little better than what I thought when I first saw the policy. But really, I think I must have missed the distinction at first because it was so improbable that Elsevier would really try to treat individual websites and IRs differently. Now that I fully understand that intention, it provides clear evidence of just how out of touch with the real conditions of academic work Elsevier has become.

Questions abound. Many scientists, for example, maintain lab websites, and their personal profiles are often subordinate to those sites. Articles are most often linked, in these situations, from the main lab website.  Is this a personal website? Given the distinction Elsevier makes, I think it must be, but it is indicative of the fact that the real world does not conform to Elsevier’s attempt to make a simple distinction between “the Internet we think is OK” and “the Internet we are still afraid of.”

By the way, since the new policy allows authors to replace pre-prints on ArXive and RePEC — those two are specifically mentioned — with final author manuscripts, it is even clearer to see that this new policy is a direct attack on repositories, as the Chronicle of Higher Education perceives in this article.  Elsevier seems to want to broaden its ongoing attack on repositories, shifting from a focus on just those campuses that have an open access policy to now inhibiting green self-archiving on all university campuses.  But they are doing so using a distinction that ultimately makes no sense.

That distinction gets really messy when we try to apply it to the actual conditions of campus IT, something Elsevier apparently knows little about and did not consider as the wrote the new policy documents.  I am reminded that, in a conversation unrelated to the Elsevier policy change, a librarian told me recently that her campus Counsel’s Office had told her that she should treat the repository as an extension of faculty members’ personal sites.  Even before it was enshrined by Elsevier, this was clearly a distinction without a difference.

For one thing, when we consider how users access these copies of final authors’ manuscripts, the line between a personal website and a repository vanishes entirely. In both cases the manuscript would reside on the same servers, or, at least, in the same “cloud.” And our analytics tell us that most people find our repositories through an Internet search engine; they do not go through the “front door” of repository software. The result is that a manuscript will be found just as easily, in the same manner and by the same potential users, if it is on a personal website or in an institutional repository. A Google or Google Scholar search will still find the free copy, so trying to wall off institutional repositories is a truly foolish and futile move.

For many of our campuses, this effort becomes even more problematic as we adopt software that helps faculty members create and populate standardized web profiles. With this software – VIVO and Elements are examples that are becoming quite common — the open access copies that are presented on a faculty author’s individual profile page actually “reside” in the repository. Elsevier apparently views these two “places” – the repository and the faculty web site – as if they really were different rooms in a building, and they could control access to one while making the other open to the public. But that is simply not how the Internet works. After 30 years of experience with hypertext, and with all the money at their disposal, one would think that Elsevier should have gained a better grasp on the technological conditions that prevail on the campuses where the content they publish is created and disseminated. But this policy seems written to facilitate feel-good press releases while still keeping the affordances of the Internet at bay, rather than to provide practical guidelines or address any of the actual needs of researchers.

From control to contempt

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.

Stepping back from sharing

The announcement from Elsevier about its new policies regarding author rights was a masterpiece of doublespeak, proclaiming that the company was “unleashing the power of sharing” while in fact tying up sharing in as many leashes as they could.  This is a retreat from open access, and it needs to be called out for what it is.

For context, since 2004 Elsevier has allowed authors to self-archive the final accepted manuscripts of their articles in an institutional repository without delay.  In 2012 they added a foolish and forgettable attempt to punish institutions that adopted an open access policy by purporting to revoke self-archiving rights from authors at such institutions.  This was a vain effort to undermine OA policies; clearly Elsevier was hoping that their sanctions would discourage adoption.  This did not prove to be the case.  Faculty authors continued to vote for green open access as the default policy for scholarship.  In just a week at the end of last month the University of North Carolina, Chapel Hill, Penn State, and Dartmouth all adopted such policies.

Attempting to catch up to reality, Elsevier announced last week that it was doing away with its punitive restriction that applied only to authors whose institutions had the temerity to support open access. They now call that policy “complex” — it was really just ambiguous and unenforceable — and assert that they are “simplifying” matters for Elsevier authors.  In reality they are simply punishing any authors who are foolish enough to publish under these terms.

Two major features of this retreat from openness need to be highlighted.  First, it imposes an embargo of at least one year on all self-archiving of final authors’ manuscripts, and those embargoes can be as long as four years.  Second, when the time finally does roll around when an author can make her own work available through an institutional repository, Elsevier now dictates how that access is to be controlled, mandating the most restrictive form of Creative Commons license, the CC-BY-NC-ND license for all green open access.

These embargoes are the principal feature of this new policy, and they are both complicated and draconian.  Far from making life simpler for authors, they now must navigate through several web pages to finally find the list of different embargo periods.  The list itself is 50 pages long, since each journal has its own embargo, but an effort to greatly extend the default expectation is obvious.  Many U.S. and European journals have embargoes of 24, 36 and even 48 months.  There are lots of 12 month embargoes, and one suspects that that delay is imposed because those journals that are deposited in PubMed Central, for which 12 months is the maximum embargo permitted.  Now that maximum embargo is also being imposed on individual authors.  For many others an even longer embargo, which is entirely unsupported by any evidence that it is needed to maintain journal viability, is now the rule.  And there is a handful of journals, all from Latin America, Africa, and the Middle East, as far as I can see, where no embargo is imposed; I wonder if that is the result of country-specific rules or simply a cynical calculation of the actual frequency of self-archiving from those journals.

The other effort to micromanage self-archiving in this new policy is the requirement that all authors who persevere and wish, after the embargo period, to deposit their final manuscript in a repository, must apply a non-commercial and no derivative works limitation on the license for each article.  This, of course, further limits the usefulness of these articles for real sharing and scholarly advancement.  It is one more way in which the new policy is exactly a reverse of what Elsevier calls it; it is a retreat from sharing and an effort to hamstring the movement toward more open scholarship.

The rapid growth of open access policies at U.S. institutions and around the world suggests that more and more scholarly authors want to make their work as accessible as possible.  Elsevier is pushing hard in the opposite direction, trying to delay and restrict scholarly sharing as much as they can.  It seems clear that they are hoping to control the terms of such sharing, in order to both restrict it putative impact on their business model and ultimately to turn it to their profit, if possible.  This latter goal may be a bigger threat to open access than the details of embargoes and licenses are. In any case, it is time, I believe, to look again at the boycott of Elsevier that was undertaken by many scholarly authors a few years ago; with this new salvo fired against the values of open scholarship, it is even more impossible to imagine a responsible author deciding to publish with Elsevier.

Signing My Rights Away (a guest post by Jennifer Ahern-Dodson)

NOTE — Authorship can be a tricky thing, impacted by contractual agreements and even by shifting media.  In this guest post by Jennifer Ahern-Dodson of Duke’s Thompson Writing Program we get an additional perspective on the issues, one that is unusual but might just become more common over time  It illustrates nicely, I think, the link between authorship credit, publication agreements and a concern for managing one’s online identity.  A big “thank you” to Jennifer for sharing her story:

Signing My Rights Away

Jennifer Ahern-Dodson

I stared at my name on the computer screen, listed in an index as a co-author for a chapter in a book that I don’t remember writing. How could I be published in a book and not know about it? I had Googled my name on the web (what public digital humanist Jesse Stommel calls the Googlesume), as part of my research developing a personal website through the Domain of One’s Own project, which emphasizes student and faculty control of their own web domains and identities. Who am I online? I started this project to find out.

I was taken aback by some of what I found because it felt so personal—my father’s obituary, a donation I had made to a non-profit, former home addresses. All of that is public information, so I shouldn’t have been surprised, but then about four screens in I found my name listed in the table of contents for a book I’d never heard of. Because the listed co-author and I had collaborated on projects before, including national presentations and a journal publication, I wondered if I had just forgotten something we’d written together.

I emailed her immediately and included a screenshot of the index page. Subject line: “Did we write this?”

She wrote back a few minutes later.

WHAT??!!!  We have a book chapter that we didn’t even know about???!!!!!  How is this possible?  Ahahahahahahahaha!!!!!

It’s a line for our CV! But, wait, what is this publication? Do we even want to list it? Would we list it as a new publication? Is it even our work? How did this happen?

This indeed was a mystery. At the time this was all unfolding, I was participating in a multidisciplinary faculty writing retreat. Once I shared the story with fellow writers, they enthusiastically joined in the brainstorming and generated a wide range of theories including plagiarism, erroneous attribution, a reprint, and an Internet scam (see Figure below). I mapped the possibilities for this curious little chapter called “Service Learning Increases Science Literacy,” listed on page 143 of the book National Service: Opposing Viewpoints (2011)[1].

 

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I needed to do more research and so requested the book through Interlibrary Loan and purchased it online as well.

And then there was the story of the editor. Who was she? Did she really exist? Was she a robot editor—just a name added to the front of a book jacket? I started wondering, now that so much of our work is digitized, are robots reading—and culling through—our work more than people? A quick search on Google revealed she was the editor for over 300 books, mostly for young adults. Follow up searches on LinkedIn and Google+ revealed profiles that seemed authentic.

The book arrives.

About a week later, the book arrived through Inter-library Loan. While still standing at the library service desk, I quickly flipped to page 143.

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What I discovered is a reprint (with a new title) of an article my author and I had published in the Journal of College Science Teaching.[2] It was republished with permission through the journal, conveyed through Copyright Clearance Center. The table of contents included a range of authors and works, including an
excerpt from a speech by George W. Bush.

It all looked legitimate. But how could I be published and not know about it?

In an email conversation with Kevin Smith, my university’s scholarly communication director and copyright specialist, I learned that typically in publication agreements, authors transfer copyright to the organization that publishes the journal. From then on, the organization has nearly total control. It can do what it wants with the article (like republish it or modify it), and for most other uses I might want to make (like including it on my website), I’d have to ask their permission.

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I also learned that republication is not uncommon. Although this book is marketed as “new,” it is in fact really just repackaged material from other sources that libraries likely already have. In this case, our article for a
college teaching journal was repackaged for an audience of high school teachers as part of an opposing viewpoints series, essentially marketing the same content to a different audience.

In a slightly different repackaging model, MIT Press has started re-publishing scholarly articles from its journals in a thematically curated eBook series called Batches.

These two models made visible for me the ways that copyright, institutional claims, and the Internet fuel change at a pace so rapid it seems almost impossible for authors to keep up.

Where to go from here

Although the ending to this mystery is not as thrilling as I thought it would be (someone plagiarized our work! Someone recorded and transcribed a talk! The book is a scam!), what I uncovered was this whole phenomenon of book republishing. Our chapter was legitimately repackaged in a mass marketed book with copyright secured, which allowed our work to be shared with a broader audience (which I see as a good thing). Yet, the process distanced me from my work in a way I was not expecting. In my naïve, yet I suspect widely held view of academic authorship, I assumed the contract I had signed was simply a formality, more of a commitment by the journal to publish the article and an agreement by my co-author and me to do so. I only skimmed the contract, distracted perhaps by the satisfaction of getting published and the opportunity to circulate my ideas more broadly.

As I submerged myself into the murky depths of republishing, I started to think about my own responsibility as both a writer and a teacher of undergraduate writers, to educate myself on authors’ rights. Could I negotiate publishing agreements to retain copyright? Or, at the very least, could I secure flexibility to re-use my work? As it turns out, yes. The Scholarly Publishing and Academic Resources Coalition has created an Author Addendum to help authors manage their copyright and negotiate with publishers rather than relinquishing intellectual property.

Although it is not uncommon for publishers to ask authors to sign over their legal rights to their work, at least one publisher—Nature Publishing, which includes the journals Scientific American and Nature—goes even farther. It requires authors not only to waive their legal rights but also their “moral rights.” Under this agreement, work could conceivably be republished without attribution to the original author. There was a story about this a couple of months ago, see http://chronicle.com/article/Nature-Publishing-Group/145637/.

In my case, I clearly did not do due diligence as an author when I read and signed the agreement for the science literacy article, and neither the journal nor the book editor or publisher was under any legal obligation to notify me that my work was republished or retitled. I wonder, however, what would happen if we applied the concept of academic hospitality to our publishing relationships. Could a simple email notification when/if our work gets republished be a kind of professional courtesy we can expect? Or, should we as authors get more comfortable with less control over our work and choose to share our ideas more liberally in public domains in addition to academic journals, which have limited readership and at times draconian author agreements? Do institutions have any role to play in educating their faculty and graduate students about signing agreements?

In my quest to create a domain of my own, to “reclaim the web” and be an agent in crafting my own author identity online, I discovered that, in fact, I had given up control of some of my own work. Now, I’m aware of the need to balance going public with my work—both online and in print—with a thoughtful and informed understanding of my rights and responsibilities as an academic author.

[1] Gerdes, Louise, Ed. Greenhaven Press.

[2] Reynolds, J. and Ahern-Dodson, J. “Promoting science literacy through Research Service-Learning, an emerging pedagogy with significant benefits for students, faculty, universities, and communities.” Journal of College Science Teaching 39.6 (2010).

 

Attention, intention and value

How should we understand the value of academic publications?  That was the question addressed at the ALA Annual Conference last month during the SPARC/ACRL Forum.  The forum is the highlight of each ALA conference for me because it always features a timely topic and really smart speakers; this year was no exception.

One useful part of this conversation was a distinction drawn between different types of value that can be assigned to academic publications.  There is, for example, the value of risk capital, where a publication is valued because someone has been willing to invest a significant amount of money, or time, in its production.  Seeing the value of academic publications in this light really depends on clinging to the scarcity model that was a technological necessity during the age of print, but which is increasingly irrelevant.  Nevertheless, some of the irrational opposition we see these days towards open access publications seems to be based on a myopic approach that can only recognize this risk value; because online publication can be done more inexpensively, at both production and consumption, and therefore does not involve the risk of a large capital investment, it cannot be as good.  Because the economic barrier to entry has been lowered, there is a kind of “they’ll let anyone in here” elitism in this reaction.

Another kind of value that was discussed is the cultural value that is supposedly infused into publications by peer-review.  In essence, peer-review is used as a way to create a different, artificial type of scarcity — amongst all the material available in the digital age, peer-review separates and distinguishes some as having a higher cultural value.

Of course, there is another way to approach this kind of winnowing valuable material from the booming, buzzing confusion; one could look at how specific scholarship has been received by readers.  That is, one could look at the value created by attention.  We are especially familiar with attention value in the age of digital consumerism because we pay attention to Amazon sales figures, we seek recommendations through “purchased together” notes, and we look at consumer reviews before booking a hotel, or a cruise, or a restaurant.  Some will argue that these parallels show that we cannot trust attention value; it is only good for inconsequential decisions, the argument goes. But figuring out how to use attention as a means to make sound evaluations of scholarship — better evaluations than we are currently relying on — is the focus of the movement we call “alt-metrics.”

Before we discuss attention value in more detail, however, we need to acknowledge another unfortunate reminder that the cultural value created by peer-review may be even more suspect and unreliable. Last week we saw a troubling incident that provokes fundamental doubts about peer-review and how we value scholarly publications when Sage Publishing announced the retraction of sixty articles due to a “peer-review ring.”  Apparently a named author used fake e-mail identities, and maybe some cronies, in order to review his own articles and to cite them, thus creating an artificial and false sense of the value of these articles.  Sage has not made public the details, so it is hard to know exactly what happened, but as this article points out, the academic world needs to know — deserves to know — how this happened.  The fundamental problem that this incident raises is the suggestion that an author was able to select his own peer-reviewers and to direct the peer-review requests to e-mails he himself had created, so that the reviewers were all straw men.  Although all the articles were from one journal, the real problem here is that the system for peer-review apparently simply is not what we have been told it is, and does not, in fact, justify the value we are encouraged to place on it.

Sage journals are not inexpensive.  In fact, the recent study of “big deal” journal pricing by Theodore Bergstrom and colleagues (subscription required), notes that Sage journal prices, when calculated per citation (an effort to get at value instead of just looking at price), are ten times higher than those for journals produced by non-profits, and substantially higher even than Elsevier prices.  A colleague recently referred to Sage journals in my hearing as “insanely expensive.” So it is a legitimate question to ask if we are getting value for all that money.  One way high journal prices are often justified, now that printing and shipping costs are mostly off the table, is based on the expertise required at publishing houses to manage the peer-review system.  But this scandal at the Journal of Vibration and Control raises the real possibility that Sage actually uses a kind of DIY system for peer-review that is easily gamed and involves little intervention from the publisher.  How else could this have happened?  So we are clearly justified is thinking that the value peer-review creates for consumers and readers is suspect, and that attention value is quite likely to be a better measure.

Attention can be measured in many ways.  The traditional impact factor is one attempt to analyze attention, although it only looks at the journal level, measures only a very narrow type of attention, and tells us nothing about specific articles.  Other kinds of metrics, those we call “alt-metrics” but ought to simply call metrics, are able to give us a more granular, and hence more accurate, way to evaluate the value of academic articles.  Of course, the traditional publication system inhibits the use of these metrics, keeping many statistics proprietary and preventing cross-platform measurements.  Given the Sage scandal, it is easy to see why such publishers might be afraid of article-level measures of attention.  The simple fact is that the ability to evaluate the quality of academic publications in a trustworthy and meaningful way depends on open access, and it relies on various forms of metrics — views, downloads, citations, etc. — that assess attention.

But the most important message, in my opinion, that came out of the SPARC/ACRL forum is that in an open access environment we can do better than just measuring attention.  Attention measures are far better than what we have had in the past and what we are still offered by toll publishers. But in an open environment we can strive to measure intention as well as attention.  That is, we can look at why an article is getting attention and how it is being used.  We can potentially distinguish productive uses and substantive evaluations from negative or empty comments.  The goal, in an open access environment, is open and continuous review that comes from both colleagues and peers.  This was an exciting prospect when it was raised by Kristen Ratan of PLoS during the forum, where she suggested that we should develop metrics similar to the author-to-author comments possible on PubMed Commons that can map how users think about the scholarly works they encounter.  But, after the Sage Publishing debacle last week, it is easier to see that efforts to move towards an environment where such open and continuous review is possible are not just desirable, they are vital and very urgent.

Why I joined the Authors Alliance

A new organization for authors, called the Authors Alliance, is launching today (May 21) with a reception in San Francisco at the headquarters of the Internet Archive.  I cannot attend, but a couple of weeks ago I responded to an invitation and became a founding member of the Alliance; I also made a small financial contribution to help the group get off the ground.  This seemed like an obvious move to me.  Why shouldn’t academic authors, as well as the multitude of others who write for reasons not directly linked to commercial sales, have an organization that represents their interests?  Surely the idea of (mostly) academic authors organizing to further their own interests is not controversial.

But after I joined the Authors Alliance, a colleague sent me a link to an amazing, apparently distraught blog post on the website of the Authors Guild that seems to be warning AG members about the dangers posed by the Authors Alliance.  Although the author of the post, a successful author of biographies named T.J. Stiles, affects a tone of calm, his misinformation and efforts to sound contemptuous make it very clear that the Alliance is perceived as a threat by the AG.  Which, of course, is an additional argument for signing up.

Throughout his post, Stiles talks about the Alliance as an organization for people who want to “give away” their work.  He sarcastically suggests that,

If you think, in our digital age, that the biggest problem facing authors is how hard it is to give your work away for free, it’s for you. If you think you’ve got too much power over people who copy and distribute your work without your permission, by all means sign up.

This, of course, is a profound misunderstanding of the situation of academic authors.  Under the current system, academic authors are almost always required to give away their work for free to publishers, who then sell it at a profit.  Stiles, who worked for years for Oxford University Press, ought to know this.  The “power over people who copy and distribute your work” is all held by these publishers, who become the copyright holders once academic authors sign transfer agreements as a condition of publication.  One reason for joining the Authors Alliance is precisely so that academic authors can retain more control and give away less.

In his desperation to say bad things about this new organization, which has yet to take any positions or actions as a group, Stiles is even willing to contradict himself.  He refers to the Alliance as “an astroturf organization. It was not organized by authors, nor is it governed by them. The four directors are Berkeley academics.”  But in other places he acknowledges the obvious fact that academics are authors; they are just supported by a different financial model than that to which the Authors Guild myopically clings.  Make no mistake; the Authors Alliance is organized and governed by authors in order to represent the interests of authors.

Stiles goes on to assert some of the putative stances the Alliance might take, although he acknowledges that it is too early to know for sure.  Instead, he just extrapolates based on gross exaggerations of some of the academic arguments made by Alliance board members, especially Professor Pam Samuelson.  For example, based on arguments for a digital first sale right, he makes the absurd claim that the Alliance would want a world where “anyone could become a publisher of your book,” based on the idea that resale would always involve copying.  Stiles carefully ignores the fact that all such discussions, to my knowledge at least, advocate for a “forward and delete” regime that would replicate the physical first sale right that has been part of U.S. copyright law for over a century.  Likewise Stiles claims that members of the Alliance board have advocated for “allowing potentially unlimited copying for educational uses.”  If so, I have never heard them.  What I have heard, and advocate for, is a fair use right — again part of our law for more than 170 years — that works for education in those cases where it does not threaten the commercial sales of the works.  That, in fact, is exactly what Judge Chin evoked when he ruled against the AG in their lawsuits against the Google Books project.

Stiles’ essay is an exercise in fear-mongering and, when he begins to cite the salaries paid to some of its academic founders, a rather petulant envy.  Since he has spent a lot of space offering fictionalized reasons that one might join the Authors Alliance, let me close by citing two that were specifically important to me when I decided to join.

First, it has the potential to be far more representative of authors as a whole than the Authors Guild is.  It is the AG that is really a niche organization, representing, according to public documents, about 8,000 members.  There are, of course, vastly more authors than that in the U.S; indeed, there is a larger number of potential academic authors than that total just within a 30-mile radius of where I sit as I write this, because of the four large universities in the Research Triangle.  The Authors Guild sees itself as representing a single type of author — those who wish to sell their books through commercial outlets and who have had success doing so.  This is a very small percentage of authors.  The remaining group are not bad authors, or all amateurs, as Stiles implies; they are just authors who making their living based on different business models.

Which brings me to my second reason for joining the Authors Alliance; it can represent a much more diverse perspective on the business and technology of authorship.  The truth is that the Authors Guild is apparently irredeemably wedded to a single business model, which is itself tied to the technology of print.  That business model depends, even in its digital forms, on making the book (or article) a scarce object and then limiting its readership to those who pay to obtain a (costly) copy.  This model only developed with the printing press, and as other options “come online” its relevance is fading.  Limiting readership, while necessary to the print-based approach to authorship, is not something that actually appeals to many authors.  Most people, I would think, write so that lots of people will read their work.  If other ways can be found to reimburse their effort while still supporting a wide readership, that is all to the good.

Of course, for most of our history writers have been supported in other ways.  Shakespeare and Dante were supported by patrons.  Many authors today are supported by a similar kind of patronage, from foundations, agencies or, indeed, universities.  Stiles himself, as the winner of the 2010 Pulitzer Prize for Biography, which carries a cash award with it, is not unfamiliar with a certain kind of patronage support.  So when he says that one should not join the Authors Alliance if “you earn a living as a writer, or hope to” he is being incredibly myopic.  And when he goes on to cite the salaries of some of the academic authors who are founding the Alliance he exposes his hypocrisy and envy.  These academic founders of the Alliance DO make their livings as writers, and their substantial salaries are testimony to their skill at it.  Authorship is a requirement of the jobs that pay them those salaries, and they are repeatedly evaluated on the basis of their writings, as well as other factors, in order to be sure they are providing value for money.

The point is that there are many ways in which writers are supported in their endeavors, and even more various are the reasons that people become writers.  The Authors Guild is focused on a single reason and a single business model, and it is sinking into irrelevance because of that limited vision.  Stiles’ essay reflects the desperation of the AG as much as its quixotic campaign of lawsuits does.  So why join the Authors Alliance?  Because academic authors need a representative body that can look beyond a single model to embrace new technologies and business models that are both new and, sometimes, old.  Because we need a representative group that has the vision and flexibility to be relevant and influential well into the 21st century.

Publishing ironies

Would Karl Marx have waived his copyright on principle?  I don’t know for sure, but I rather doubt it.  Marx was not entirely in sympathy with Proudhon’s famous assertion that “property is theft,” and in any case probably expected to make at least part of his living off from his intellectual property.  Nevertheless, there is something rather odd about a left-wing press asserting its own copyright to prevent the digital distribution of the Collected Works of Marx and Engels.  Marx’s interests are not being protected, of course; his works have been in the public domain for many years.  But Lawrence & Wishart Publishing wants to protect its own income from this property by asserting a copyright in new material that is contained in the volumes, including notes, introductions and original translations, and it has demanded that the Marxists Internet Archive remove digital copies of the works.

It is interesting to consider who is being hurt by the distribution and by the take down demand.  The distribution, as I say, does no harm to Marx or his descendants, since the copyright has already expired.  The party harmed, of course, is the publisher, which can continue to collect revenue from public domain works, and is entitled to enforce exclusivity if, as in this case, there is new material that is currently protected by copyright.

So we have the irony of Marxist literature being protected by that most capitalist of business structures, a monopoly, and a left-wing press asserting that monopoly to limit dissemination of Marxist ideas.

Does the take down demand harm anyone?  Much of this literature is available in other forms on the Internet, owing to its public domain status.  Potential readers will presumably be harmed, to a degree, because English versions of some more obscure works by Marx and Engels will become unavailable if the translations in the Collected Works were the first of their kind.  But I can’t help thinking that the folks who are really harmed by this decision are the contemporary scholars who contributed to the volumes published by Lawrence and Wishart.  Perhaps they thought that by contributing to a collected works project they had the opportunity to offer a definitive interpretation of some particular essay or letter.  Perhaps they hoped to make an impact on their chosen field of study.  But those opportunities are greatly reduced now.  Potential readers will find the works they are looking for in other editions that remain available in the Archive, or they will not find them at all.  They will look to other scholars to help them understand those works, scholars whose writings are more accessible.

While I cannot dispute the right of Lawrence and Wishart to demand exclusivity, it is a clear reminder about how poorly the traditional system of publishing, based on state-enforced exclusivity, serves scholars in an age when there are so many opportunities in the digital environment to reach a much larger audience.  I suspect that the price of the Collected Works set is high, and the publisher is quite obscure (a colleague here just shrugged when I mentioned the name), so its distribution will be quite limited.  It is a sad illustration of how traditional publishing that relies on subscriptions for digital material is inextricably mired in the print model, trying desperately to reproduce the scarcity of print resources in defiance of the abundance possible in the digital environment.  The losers in that effort are the scholars whose ability to impact their field is deliberately reduced by this effort — beyond their control — to preserve exclusivity and scarcity.

“Beyond their control” leads directly to the other irony from the publishing industry that I want to share in this post.  A colleague recently sent me a PDF of the preliminary program for the conference being held in Boston next month of the Society for Scholarly Publishing.  It was the description of the very first seminar that caught both her eye and mine:

Seminar 1: Open Access Mandates and Open Access “Mandates:” How Much Control Should Scholars Have over Their Work?Many universities now mandate that faculty authors deposit their work in Open Access university repositories.  Others are developing this expectation, but not yet mandating participation.  This seminar will review various mandatory and non-mandatory OA deposit policies, the implementation of different policies, and the responses of faculty members to them.  Panelists will discuss the degree to which academic institutions ought to determine the disposition of publications originating on their campus.

It is hard to believe that the SSP could print this session description with a straight face.  Surely they know that the law deliberately gives scholars a great deal of control over their work, in the form of copyright.  Scholars exercise that control in a variety of ways, including when they vote to adopt an open access policy, as many have done.  So where is the threat to scholar’s control over their own works?  Perhaps at the point where they are required to relinquish their copyright as a condition of publication.  If the SSP were really concerned about scholars having control over their own writings, the panel for this session would be discussing how to modify copyright transfer policies so that scholarly publishers would stop demanding that faculty authors give up all of their rights.

The SSP has carefully written the session description to make it sound like open access policies are imposed on faculty against their will.  But every policy I am aware of was adopted by the faculty themselves, usually after extensive discussions.  And the majority of policies have liberal waiver provisions, so that faculty who do not wish to grant a license for open access do not have to do so.  On the other hand, publishers almost never provide a similar way for authors to opt out of mandatory copyright transfer, other than paying a significant fee for an author-pays OA option, which offers authors a chance to buy what they already own.  Perhaps this concern about authorial control could be channeled into a discussion about the new models of scholarly publishing that are developing that do not require copyright transfer and that seek alternate ways to finance the improved access so many university faculties are indicating they want.

There is a lot to talk about here, especially in terms of authorial control.  Consulting the authors whose material is published in the Collected Works of Marx and Engels might have engendered discussion of a solution to the issue about the Marxists Archive other than simply demanding removal.  Maybe those authors should have resisted the demand to transfer copyright wholesale to Lawrence and Wishart in the first place. But publishers continue to think in terms of total control over the works they publish; that is the real threat to authors and that is the problem that the SSP ought to be addressing.

Attacking academic values

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.

 

So what about self-archiving?

There is a persistent problem with polemics.  When writing to address someone else’s position with which one disagrees, it is easy to lose sight of the proverbial forest for the trees.

In my previous two posts, I was addressing a misunderstand that I am afraid might lead authors to be less attentive and assertive about their publication contracts than they should be.  The specific issue was whether or not it is feasible to maintain that a copyright is transferred only in a final version of a scholarly article, leaving copyright in earlier versions in the hands of the author.  I argued that this was not the case, that the distinction between versions is a construct used by publishers that has little legal meaning, and that author rights that do persist in earlier versions, as they often do, are created by the specific terms of a copyright transfer agreement (i.e., they are creatures of a license).  These points, which I believe are correct, prompted a number of people to get in touch with me, concerned about how these specific “trees” might impact the overall forest of self-archiving policies and practices.

So now I want to make several points that all address one conclusion; this argument about the nature of a copyright transfer does not necessarily have any significant impact on what we do to enhance and encourage self-archiving on our campuses.  Most of the practices I am aware of already take account of the argument I have been making, even if they are not explicit about it.

On the LibLicense list today, Professor Steven Harnad, who is a pioneer in the movement to self-archive scholarly papers, posted a 10-point strategy for accomplishing Green open access.  Essentially, he points out that a significant number of publishers (his number is 60%) allow authors to self-archive their final submitted versions of their articles, and that those who have retained this right should exercise it.  Elsevier is one such publisher, about which more later.  Harnad argues that there are other strategies available for authors whose copyright transfer agreements do not allow self-archiving of even the final manuscript.  One option is to deposit the manuscript in a repository but embargo access to it.  At least that accomplishes preservation and access to the article metadata, and it facilitates fulfillment of individual requests for a copy.  Another option is to deposit a pre-print (the version of the article before peer-review) in a pre-print repository, which is a solution that has long worked well in specific disciplines like physics and computer science.

All of these strategies are completely consistent with the point I have been making about copyright transfer agreements.  Harnad’s model recognizes that copyright is transferred (perhaps improvidently) to publishers, and is based on authors taking full advantage of the rights that are licensed back to them in that transaction.  This makes perfect sense to me and nothing I have written in my previous two posts diminishes from this strategy.

One of the questions I have received a couple of times involves campus open access policies and how they affect, or are affected by, copyright transfers.  These policies often assert a license in scholarly articles, so the question is essentially whether that license survives a transfer of copyright.

It is a basic principle of law, and common sense, that one cannot sell, or give away, more than one owns.  So if an author has granted a license to her institution before she transfers her rights to a publisher, it seems clear that the license should survive, or, to put it another way, that the rights that are transferred to the publisher are still subject to this prior license.  There was an excellent article written in 2012 by law professor Eric Priest about this situation, and his conclusion is “that permission mandates can create legally enforceable, durable nonexclusive licenses.”  The article provides an extensive analysis of the legal effect of this “Harvard-style” license, and is well worth being read in its entirety by all who are interested in the legal status of Green open access.

An additional wrinkle to the status of a prior license is provided by section 205(e) of the copyright law, which actually addresses the issue of “priority between conflicting transfer of ownership and nonexclusive license.”  This provision basically affirms what I have said above, that a license granted prior to a transfer of copyright survives the transfer and prevails over the rights now held by the transferee, IF it is evidenced by a written instrument.  Because of this provision, some schools that have a license that is created by an open access policy also get a document from the author at the time of OA deposit that affirms the existence of that license.  Such documentation helps ensure the survival of a policy-based license even after the copyright is later trnsferred to a publisher.

Even when we decide that a license for Green open access exists and has survived a copyright transfer, however, we still have a policy decision to make about how aggressively to assert that license.  Many institutional practices look to the terms of the copyright transfer and try to abide by the provisions found therein, usually relating to the version that can be used and when it can be made openly accessible.  They do this, I think, to avoid creating an uncomfortable situation for the authors.  Even if legally that license they granted would survive the transfer of rights, if a conflict with the publisher developed, the authors (whom we are, after all, trying to serve) would be in a difficult place.  So my personal preference is to conform our practice to reasonable publisher policies about self-archiving and to work with authors to get unreasonable policies changed, rather than to provoke a dispute.  But this is a policy matter for specific institutions.

Finally, I want to say a couple of things specifically about Elsevier, since it was Elsevier’s take down notices directed against author self-archiving that began this series of discussions.

Elsevier’s policies permit authors to self-archive the final manuscript version of an article but not the published version, and, as far as I know, all of its take down notices were directed against final published versions on institutional or commercial websites.  So it is true that in my opinion, based on the analysis I have presented over the past week, that Elsevier is legally justified in this take down campaign.  It may well be a stupid and self-defeating strategy — I think it is — but they have the legal right to pursue it.  Authors, however, also have the legal right, based on Elsevier’s policies that are incorporated into their copyright transfer agreements, to post an earlier version of the articles — the final author’s manuscript(s) — in place of these final published versions.  So I hope that every time a take down notice from Elsevier that is directed against the author of the work in question is received, the article that is taken down is replaced by a  final manuscript version of the same content.

As many know, Elsevier also has an foolish and offensive provision in its current copyright transfer agreement that says that authors are allowed to self-archive a final manuscript version of their article UNLESS there is an institutional mandate to do so.  As I have said before, this “you may if you don’t have to but not if you must” approach is an unjustifiable interference with academic freedom, since it is an attempt to tie faculty rights to specific policies that the faculty themselves adopt to further their own institutional and academic missions.  Elsevier should be ashamed to take this stance, and our institutions that value academic freedom should protest.  But based on what has been said above, we can also see how futile this approach really is.  If the institution has a policy-created license, that license probably survives the copyright transfer, as Eric Priest argues.  In that case, the denial of a self-archiving right only in cases where a license exists is meaningless precisely because that license does exist; authors could self-archive based on the license and do not need the grant of rights that Elsevier is petulantly withholding.  I said above that institutions should consider whether or not they want to provoke disputes by relying on the prior existence of a license to self-archive.  Elsevier, however, seems to have decided to provoke exactly that dispute with this provision, and they are even more unwise to do so since it is likely to be a losing proposition for them.