Category Archives: Authors’ Rights

Who posted all those articles to ResearchGate anyway?

You may have heard about recent legal action against ResearchGate brought by several large academic publishers organized under name of the “Coalition for Responsible Sharing” (Elsevier, Wiley, Wolters Kluwer, Brill, and ACS). Some of its members filed a lawsuit against ResearchGate and sent ResearchGate copyright takedown notices for many articles posted there. There are some good summaries of the dispute already, including this one by Mike Wolfe at UC Davis and this one on Science Magazine Online.

The dispute is about the millions of copyrighted articles–the Coalition claims there are 7 million–made freely available through ResearchGate. The Coalition publishers, whose business model depends on charging for access to those articles, don’t like that users can get them for free. It’s a familiar dispute, and one that publishers have fought over the years, although on a much smaller scale, with Academia.edu, as well as a variety of universities repositories.

A natural inclination toward open access

So, who posted all those articles to ResearchGate? As far as I can tell, every article shared through ResearchGate was put there by one of its authors. I’m not sure of all of the reasons why authors use ResearchGate, but I believe a major one is that those authors want their work to be as easy to find and read as possible.

I also believe, based on experience working with academic authors on their publishing contracts, that many authors aren’t aware of the details of how their publishing contracts allow them to share their work. They aren’t lawyers, but they shouldn’t have to be.

For most of the ResearchGate articles, I have every reason to think that the publishers are correct in their assertion of legal authority, based on publishing contracts, to remove those articles. Authors often sign publishing contracts that transfer almost all of their rights to publishers. Some agreements grant rights back to authors for some “scholarly sharing”, but the contract terms are often so incomprehensible and limited that they are effectively meaningless to many authors. Some try to figure it out (do a Google search for “Is it legal to post articles to ResearchGate?” and you’ll find lots of advice of varying quality), but it’s far from clear.  So instead, many authors opt to follow their natural inclination—despite the risks—to take what steps they can to make their work easier to find, read, and perhaps be cited.

OA the “right” way versus “wrong” way

Scholarly publishing has long struggled with authors who don’t especially respect or even understand the dominant pay-for-access business model. Judging by the 7 million articles authors have shared through ResearchGate, many authors seem to view that model with something from outright contempt to self-interested indifference.

 So what are publishers to do with these authors who make their work freely available the “wrong” way? If enough people do it, it may have a serious effect on journal subscriptions. But authors are in a pretty good position; if publishers start actively enforcing copyright law against authors we may react negatively (and possibly very publicly) against not just the particular enforcement action but against the underlying business model. See, e.g., The Cost of Knowledge. So instead, we now see a stream of copyright enforcement not against authors but against the intermediaries that authors use to share their work: ResearchGate, Academia.edu, and university institutional repositories. It puts those organizations in a tough position, but ultimately, the harm is to authors who want to share their work.

As many people have stated before, the goals of open access can best be achieved if authors—who have great power as the initial owners of copyright in their works—hold on to their rights and negotiate their publishing contracts for terms that allow them to widely distribute online. For that matter, authors who want to share their work as openly as they can would do well to use alternatives besides posting to proprietary commercial sites like ResearchGate. But right now, that ideal of broad OA the “right” way seems far off.

Open in order to be read

We’re at the end of Open Access week, as you may have noticed by the encouraging number of OA events over the last few days. This year’s OA Week theme is “Open in order to…” I find one of the simplest but most powerful “open in order to…” statements is “open in order to be read.” To me, a silver lining of the ResearchGate takedowns (among other similar recent actions) is that it signals meaningful, author-created, system-wide pressure against a business model that hinders readership, rather than enhances it. The method and platform demonstrating that pressure isn’t ideal, the legality is questionable, and the result for some organizations (and potentially authors) may be painful. But it’s clear that author-initiated sharing, viewed collectively, is seen as a real threat to that business model. I’m hopeful that means we’re just a little bit closer to seeing that model fade out of dominance and yield to one that emphasizes access and readership.

As for authors today, we can protect ourselves from the risk of takedown notices by retaining our rights. Publishing contracts are not written in stone; they’re negotiable. Increasingly, we can negotiate to keep the rights we need to post our works anywhere we want to be read. For anyone interested, here are some tools for doing this the right way:

 

 

 

 

 

Fair Use for Authors

Happy fair use week! I’m sure many of you have already taken note that February 20 to 24 is a week-long celebration of copyright’s fair use doctrine. The organizers at fairuseweek.org have done a great job collecting information about events and sharing resources. This ARL-commissioned fair use myths infographic is among my favorites.

One of the things I plan to do this week is talk about how important fair use is for authors. Duke, like many universities, is home to thousands of faculty and student authors who produce a tremendous quantity of creative work. In support of them, on February 23,  the Duke University Libraries Office of Copyright & Scholarly Communication will host a workshop for graduate student authors who have questions about fair use in writing their dissertations and for other writing projects. If you’re at Duke and interested, we invite you to click the link above and register!

Why Authors’ Perspectives on Fair Use Matter

At our fair use workshop I intend to emphasize to those grad students the importance of expressing their views, as authors, about what types of copying and reuse they believe are reasonable under fair use. To frame that discussion,  I plan to have participants talk about this perspective given by the Supreme Court in Harper & Row v. Nation Enterprises, which does a nice job highlighting the special relationship that authors have with the fair use doctrine:

“[T]he author’s consent to a reasonable use of his copyrighted works ha[d] always been implied by the courts as a necessary incident of the constitutional policy of promoting the progress of science and the useful arts, since a prohibition of such use would inhibit subsequent writers from attempting to improve upon prior works and thus . . . frustrate the very ends sought to be attained.” Professor Latman, in a study of the doctrine of fair use commissioned by Congress for the revision effort . . . summarized prior law as turning on the “importance of the material copied or performed from the point of view of the reasonable copyright owner. In other words, would the reasonable copyright owner have consented to the use?” (citations omitted).

Reflecting on that quote, sometimes I think our understanding about author perspectives on copyright has been dominated by those who have strong economic interests in the sale of their work. For many years, groups such as the Authors Guild have been vocal advocates for their membership, which includes many trade book authors. But there are many other authors (historically, less vocal) with a different perspective, who create with sharing and readership as their dominant motivation, not making money. That includes many academics.

Authors Alliance

One group, the Authors Alliance (I am a member), has taken up the job of “promot[ing] authorship for the public good by supporting authors who write to be read.”  Authors Alliance has been working to give a powerful platform from which the views of these authors, including many academics, can be expressed. One of the issues that Authors Alliance has focused on is the importance of a strong fair use right for authors.

A good example comes from an amicus brief that Authors Alliance recently filed in the Georgia State University fair use e-reserves case. That case was initially brought in 2008 against GSU by Cambridge University Press,  Oxford University Press and Sage. It’s now on its second appeal before the 11th Circuit Court of Appeals. The case is largely about whether it was permissible under the fair use doctrine for GSU faculty to make excerpts of academic books available to students through the GSU electronic course reserves system.

Even though the GSU suit has been ongoing for nearly nine years (!), as far as I can tell, no one has bothered to give the courts the perspective of the actual authors of the excerpts at issue in that case. In its recent amicus brief, Authors Alliance did just that.  In a page and a half of direct quotes, the brief highlights some straightforward but until-now undocumented views of the authors who wrote the chapters and books used by GSU faculty in their classes. These included, for example, quotes like “I want my work to be read as widely as possible. I have no trouble with articles or individual chapters of my book being copied for use in the classroom. In fact, I welcome it.” (Carolyn Ellis, Professor of Communication at University of South Florida and an Authors Alliance member).

While the brief does a fantastic job of working through thorny legal questions about the application of copyright law to educational use of academic works, to me the most powerful and persuasive parts of the brief  are the statements from authors themselves about what they think should be permissible, and why. I don’t know whether those quotes will leave the same impression on the appellate court, but I am optimistic.

So, authors: speak up! Talk about why fair use is important for your own work and how it has helped you. And talk about how you want your work to be used by others, whether in the classroom, in new research and scholarship, or by readers more generally.

Should you #DeleteAcademiaEdu?

[ Note: Many readers of this blog have probably heard by now that Kevin Smith, who has been the primary author here, will soon be leaving Duke to be the Dean of Libraries at the University of Kansas. We do intend to keep the blog going, and to continue to address the same issues you’ve come to expect from the site, though with a greater variety of authors. So do stay tuned. This post is by Paolo Mangiafico.]

Yesterday afternoon a kerfuffle arose on Twitter about Academia.edu, a social networking site for academics, where many academic authors have profiles, share their publications, and connect with other scholars. You can read about the beginning of the controversy in this article the Chronicle of Higher Education posted this morning.

The ensuing tweetstorm followed a fairly typical trajectory – moral outrage, call to action, a hashtag, and then of course the inevitable backlash, with each side calling into question the integrity of each other’s motivations, or at least the consistency of their actions.

The chief concern, or at least the one that appears to have caused the most heated debate initially, was whether paying for promotion of one’s scholarly work was equivalent to “vanity publishing”, but the discussion evolved into the broader issue of whether the fact that Academia.edu is a commercial service meant academics should avoid it, with several people on Twitter calling that out as hypocrisy, given the many other commercial transactions that academic life is entangled with.

My own opinion is that this is a straw man argument, and it misses an opportunity to have a more nuanced discussion about what’s really at stake here. This isn’t a morality play, and it’s not about whether charging for “monetizing” something is in itself a bad thing – for me it’s about choices, and making informed choices about keeping or ceding control to one’s own work. It’s also about being open vs being closed. Despite the impression that #DeleteAcademiaEdu is just railing against capitalism, I’d argue that it’s really about promoting a more competitive marketplace, one where the data is open for any number of potential services (consortial, member-supported, or even commercial) to do interesting and useful things with it – may the best service win, or may many complementary services thrive.

The challenge with sites like Academia.edu is that this is not possible. By most accounts, Academia.edu is a fine service, and clearly it’s meeting a need, as the number of academics who have profiles in it shows. They are doing very well at motivating academics to put their profile data and publications there. But what happens to that information once it’s there? By my read of the site’s terms of service, no other uses can be made of what you’ve put there – it’s up to Academia.edu to decide what you can and can’t do with the information you’ve given them, and they’re not likely to make it easy for alternative methods of access (why would they?). There doesn’t appear to be a public API, and you need to be logged in to do most of the useful things on the site (even as a casual reader). They were among the first to create enough value for academics to encourage them to sign up, and kudos to them for that, but does that mean your profile data and publications should be exclusively available via their platform? This is what’s called “vendor lock-in” – it’s very good for the vendor, not so good for the users.

While it’s understandable that companies will try to recoup their investments through such approaches, it nonetheless goes against the ethos of academia, and of how the Internet functions best. A few years ago at a conference I heard a speaker say

On the Internet the opposite of ‘open’ is not ‘closed’ – the opposite of ‘open’ is ‘broken’

(If I remember correctly, it was John Wilbanks)

So yesterday when I first started reading some tweets about people deleting their Academia.edu accounts, I tweeted

VIVO is an open source, open access, community-based, member-supported profile system for academics. It has been implemented by many universities and research organizations, and makes linked open data available for access and integration across implementations. In some institutions, like my own, it is connected to our open access institutional repository, so Duke researchers can easily make the full text of their publications be linked directly from their profile – open to anyone, no login required, always in the author’s control. And the custodians of the system and the data are the researcher’s home institution, as well as…  well, here I’ll quote from an article Kevin and I wrote a couple of years ago:

“this brings us to a discussion of another major player in this ecosystem that we have not yet addressed—a set of organizations that are mission driven, rather than market driven; that are widely distributed and independently operated, and therefore less vulnerable to single points of failure, and that were designed to be stable over long periods of time; that are catholic in their scope, strong supporters of intellectual freedom, and opponents of censorship and other restrictions on access to knowledge; and that are in full alignment with the mission of learning, teaching, and research that constitutes the primary reason why authors write academic articles. We are, of course, talking about libraries.”

This, ultimately, is why I think scholars will be better served by having the core data for their profiles and their research tied to open systems like VIVO, and to their universities and their libraries. Sure, the interfaces might not be as elegant, and we might move more slowly than a commercial service, but we’re in it for the long haul, we share your values, and we’re not going to try to lock in your data.

If someone wants to harvest the data from VIVO and our repository and layer on a better social networking or indexing service, that’s great – the data is available for that, and we have an open API. Do you want to charge for the service? No problem, as long as the people you’re charging know that they’re paying for your service add-ons, and not the data itself, which remains open and free to anyone else to use it outside the paid service. Do you have a service (like Academia.edu) that’s really good at convincing authors to enter their CV and upload their articles? Wonderful – make the data available unencumbered, and we might be willing to pay you to do the collecting for us (especially since institutional repositories haven’t been as successful in doing so).

The key reasons why authors should choose first to work with their scholarly communities rather than purely commercial enterprises isn’t that making money is bad – we all have to earn a living – but that the goals and values aren’t necessarily in alignment. I’ve used a lot of words to say something that Katie Fortney and Justin Gonder said in December (in “A social networking site is not an open access repository”) and Kathleen Fitzpatrick said a few months before that (in “Academia, Not Edu”), but the Twitter discussion sparked yesterday has made many more people aware of this issue, so I wanted to underline these ideas, and say a bit more about it than would fit in my tweets yesterday afternoon.

You have a choice, and the choice I hope you will think more about is whether you feel more comfortable investing your time and efforts with your home institution and your library, whose incentives and values presumably align with your own, and who will contribute to an open ecosystem, or with a service whose incentives and values and life span are unknown, and whose business model relies on being closed. If you’re comfortable with the trade-offs and risks, and willing to exchange those for the service provided, then don’t #DeleteAcademiaEdu. But I hope you will use this opportunity to look into whether alternatives exist that will meet your needs while keeping your options open and your data open, and preserving your ability to keep control of your work and make sure it’s not helping sustain an ecosystem that’s broken.

——

If you’ve read this far, I hope you’ll also tolerate this shameless plug for an upcoming event that will be a forum for addressing many of the issues discussed above – the Scholarly Communication Institute. The theme of SCI 2016, to be held in Chapel Hill, NC, in October, is “Incentives, Economics, and Values: Changing the Political Economy of Scholarly Publishing.” We invite teams to submit proposals of projects they’d like to work on that fit this theme, and to build a dream team of participants they’d like to spend 4 days with working on it. For proposals that are selected, we pay expenses (thanks to a grant from the Andrew W. Mellon Foundation) for the team to come to the North Carolina Research Triangle and work on their project alongside several other similar teams, in an institute that’s part retreat, part seminar, part unconference, and part development sprint. You can find out more about the institute at trianglesci.orgproposals are due March 14, so if you’re interested, start putting together your team soon.

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.