Category Archives: Authors’ Rights

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.


Setting the record straight about Elsevier

There has been a lot of attention given to the moves by publishing giant Elsevier to enforce its policy regarding authors’ rights to post his or her article on a personal website or in an institutional repository.  Since Elsevier began sending take down notices last fall, first to and then to individual universities, it has become well-known that authors are allowed, under their contracts with Elsevier, to post their “final submitted version,” which refers to the last version of the article, after peer-review, that is sent to the journal, but not the final published version with whatever copy-editing and formatting that the publisher has added.

This is a difficult distinction for faculty authors to understand.  My colleagues and I talk about it all the time with our faculty authors, but they persistently do not see much difference between the two versions, so they sometimes believe that there is little reason to observe the distinction.  Publishers think (or at least say publicly) that they add a lot of value to submitted manuscripts, but a great many authors do not see it that way.

Unfortunately, some of the attention that this new strategy from Elsevier has garnered has made the difficulty of explaining what is going on to faculty authors a little more difficult.  This article from The Economist Called “No Peeking…” is a case in point.  The article correctly suggests that this is going to prove a self-defeating tactic for Elsevier, whose desperation to stem the movement toward open access often leads it into foolish decisions.  The Economist, however,  misstates the copyright law in its article in a way that will unfortunately reenforce a common misconception on campuses.

Here are three sentences from The Economist article that embody the misconception I am concerned about:

Like journalists writing for a newspaper, academics submitting an article to a journal usually sign contracts which transfer copyright to the publisher…. As the University of California, Irvine, which was on the receiving end of some of the takedown notices, points out in advice to its staff, it is usually only the final version of an article, as it appears in a journal, that is covered by publisher’s copyright. There is nothing to stop scientists making earlier versions available.

The problem with the first sentence is that academic authors are really not like journalists.  Many journalists are full-time employees of their newspapers, so that their articles are owned by the newspaper from the start, as works made for hire.  On the other hand, academic authors are not employees of publishers and their writings are not work for hire.  Their rights (as well as those of some free-lance journalist) are entirely governed by the contracts they sign.  The important implication of this is that academic authors have much more control over the rights they surrender and retain than do journalists; faculty members can simply refuse to transfer copyright (because they own it unless and until it is transferred in writing) or they can negotiate the exact terms of publication, transferring or licensing some rights and holding on to others.

The bigger issue in this article, however, is in the second and third sentences quoted above, about how the copyright that is transferred to publishers only “covers” the final version of the article.  This is a common misconception that is both wrong and dangerous.  It is the same misconception that leads some people to believe that if they re-draw an illustration, chart or table from a copyrighted publication, they do not implicate copyright.  But the truth is that a copyright includes any work that is derived from the copyrighted work and is “substantially similar.”  When someone wants to use a figure from a published work, they may well be able to do so under fair use, but redrawing the figure, unless it is redrawn into something quite different (which would undermine the purpose), does not alter the copyright situation.

When we turn to the issue of article versions, the situation is the same.  Each version is a revision of the original, and the copyright is the same for all these derivatives.  When copyright is transferred to a publisher, the rights in the entire set of versions, as derivatives of one another, are included in the transfer.  Authors are not allowed to use their post-prints because the rights in that version are not covered in the transfer; they are allowed to use post-prints only because the right to do so, in specified situations, is licensed back to them as part of the publication agreement.

Once a copyright transfer has been signed, all of the rights that the author may still have are because of specific contractual terms, which are usually contained in the transfer document itself.  In short, these agreements usually give all of the rights under copyright to the publisher and then license back very small, carefully defined slivers of those rights back to the author.  One of those slivers is often, but not always, the right to use a submitted version, or post-print, in carefully limited ways.  For example, many publishers allow posting of the submitted version only on defined websites, usually a personal site or institutional repository.  Often the contracts also allow posting of the submitted version only after some lapse of time.  These restrictions would not make sense or be enforceable IF the author retained some kind of copyright in earlier versions, as The Economist implies.  But they do not; they have only, and exactly, what the contract gives back to them.

One important lesson to be gained from this correction of the language of The Economist article is that publication contracts are extremely important.  They entirely determine what an author can do with his or her own work in the future.  For many academics, signing such agreements is a very bad idea; they should be negotiated, either to make them licenses to publish, which allows the author to retain her copyright, or to be certain that the rights that are licensed back are broad enough and flexible enough to permit the future uses the author wants.  Before the transfer, the author has a good deal of leverage to negotiate these agreements, but afterward she has very little.  So it is vital to pay attention to the agreement itself and not rely on a false sense of security based on a misconception of how copyright works.

Another point to learn from this situation is that the whole idea of article “versions” is artificial.  It has been developed primarily by publishers in order to make a claim that they add substantial value to the final published version, which may or may not be true, depending on the article and the publisher.  Another marketing advantage that publishers get from this fabricated distinction is the ability to claim that they support author rights and reuse of articles to promote better access, while still retaining the ability to slap down authors who use their own articles in ways the publishers have not pre-approved.  As my colleague Will Cross has put it, “This versioning is a creation of publishers to reenforce the sense that they are following the academic “gentleman’s agreement” that Elsevier has been breaking here.”

[Hat tip to Will Cross and to Lisa Macklin of Emory, who discussed the implications of this particular mistake with me by e-mail and provided some ideas incorporated herein. Will qualified his statement quoted above by acknowledging that pre-prints, especially, have a longer history, but the use of these distinctions as contractual dividing lines is related to recent pressures on publishing.]

Copyright roundup

I had thought that my two most recent posts reflecting on the future of research libraries would end the year for this blog.  But I find two issues have arisen that I want to comment on.  Since they both involve copyright — one is merely my observations and the other involves reporting on a recent court decision — I consider this post a year-end copyright roundup.  Yee Haw!

I have commented before about the campaign that Elsevier has undertaken to send take down notices regarding PDFs of articles they have published that are posted on  At that time, I expressed the hope that the American Association of University Professors would get involved.  The AAUP has been very diligent in defending the copyright interests of faculty, correctly perceiving that rights ownership can be an issue of academic freedom.  Unfortunately, up till now, at least, this concern of the AAUP has had a huge blind spot — the threat to academic freedom that is posed when copyright is transferred to large commercial interests like Elsevier, usually gratis and on terms dictated by the assignee rather than the author, which do not share the values regarding scholarship that are held by most faculty authors and by the AAUP itself.

Now we have begun to see that this take down campaign from Elsevier has expanded, as we hear that notices to remove posted PDFs are also being sent in large numbers to universities, presumably directed at copies of articles that are posted on the individual profile or research sites of the faculty authors.  These authors clearly believe that they have the right to post these articles — probably because they correctly consider the distinction between their final submitted manuscript and the published PDF to be meaningless — and Elsevier and Elsevier’s insistence that those articles be removed is a direct attack on research sharing, the advance of scholarship and, therefore, academic freedom.  Why does the AAUP remain silent?  In the past they have implied that they did not want to interfere with authors’ decisions about where to publish.  But now we have clear evidence that many authors do not understand the rights situation and their ability to continue their research projects when they assign copyright to Elsevier.  On individual campuses we work to educate them, but we desperately need the voice, and the gravitas, of the AAUP to step in and help faculty authors understand the consequences of these publication decisions.  Thoughtless assignment of copyright is a grave threat to academic freedom, as Elseivier is working hard to demonstrate, and it is an issue that the AAUP cannot ignore without seeming to condone.

As for campus responses to these take down notices, I want to make one point.  These are not ordinary DMCA take down notices; the DMCA, and section 512 of the copyright act that it amended, pretty clearly imagine that take down notices will be sent from the rights holder to remove material posted by some third-party user of an Internet service.  They do not contemplate a situation where the actual ownership of the rights might be disputable.  But that is the case here, where the “user” who posts the PDF is the original rights holder, the author.  Elsevier is sending these notices as a putative assignee.  But we know from long experience that publishers are not good at actually completing copyright transfers, faced with publication deadlines and author disregard of the final paperwork.  So in this unique situation, we cannot be sure that Elsevier actually does hold the rights on the basis of which they are demanding takedown, and that the authors who posted the work are therefore not entitled to do so.  In this situation, simple compliance with the law demands that universities, through their DMCA agents, insist on receiving evidence of a completed copyright assignment — the law requires a written and signed instrument — before they comply with Elsevier’s take down notices.

The case I want to comment on also involves the relationship between universities and authors who hold copyright, in this case the authors of dissertations. In Andrew Diversey v. The University of New Mexico, which was before the Tenth Circuit Court of Appeals and decided on December 23, we had a direct conflict between a dissertation author and his university.  Briefly, Diversey alleged that he had a terrible time with his dissertation committee, finally sent a draft of his thesis to the Dissertation Coordinator for proofreading, and had it “confiscated” by the Graduate Studies Dean.  Subsequently, Diversey discovered that copies of his draft had been sent to ProQuest and to two UNM libraries.  The story strikes me as bizarre, especially since there is no indication that Diversey received a degree or that his dissertation won formal approval.  So it is odd that it was apparently treated as a finished product; there may be more to the story that we do not know.  But ultimately, Diversey sued the University of New Mexico for copyright infringement for copying and distributing his dissertation without authorization.  His claim was dismissed by the trial court because that court said it was filed after the statute of limitations had run out. But the Court of Appeals reinstated part of the claim, for unauthorized distribution, and sent the case back to the District Court.

The crux of the case is whether the University infringed Diversey’s by making copies and putting them in their libraries.  The Court of Appeals finds that it is at least plausible that it did.  The Court recognizes Diversey’s copyright in his dissertation, of course, and suggests that any copying or distribution without his permission, even by the University at which he was a student, is infringing.  Copies were made, according to the Court, but Diversey had notice of those copies far enough in the past that the statute of limitations had run out on his claim for unauthorized reproduction by the time it was filed.  But the Court found that Diversey only became aware of the distribution, by which it means placing copies of the dissertation in the libraries and listing them in a catalog, within the three-year limitations period, so his claim on that alleged infringement should go forward.  The Court also found that a fair use defense would not protect UNM in this set of circumstances.

To me this case is a warning to universities and schools that want to retrospectively digitize Doctoral or Masters’ theses and dissertations, and decide to skip the step of seeking permission from the authors.  It is perfectly true that libraries can distribute “lawfully made” copies under the doctrine of first sale.  But if the copies themselves were unauthorized, so too is the distribution of those copies.  In other words, if the only copy that UNM placed in its library was the one Diversey originally submitted, they could have a first-sale defense. But the University clearly made more copies, since they sent one to ProQuest and had at least two copies in their libraries.  It is the distribution of these unauthorized copies that the Court of Appeals thinks is possibly infringing.  And that situation is very similar, it seems to me, to the making of digital copies of older dissertations and placing them in an institutional repository without permission from the author.  I understand that some institutions decide that it is easier to ask forgiveness in this instance instead of permission.  But to me that attitude is disrespectful of the authors of these works.  And now we have a case that reminds us that that approach can also be expensive.

If an author discovers her dissertation in an institutional repository and is very unhappy about it, she will have three years from the time she either knew or should have known about the unauthorized copy to bring suit.  The fact that the institution might remove the copy from distribution once it learns of the objection will not protect them from such a lawsuit if the author is determined.  The expense of defending that lawsuit would be very high regardless of the outcome, and even higher if the institution loses or has to settle (which is now very likely for UNM in this case).  For these reasons, this case reinforces my long-held belief that systematic digitization of older dissertations or theses is a situation where permission is the better course, since forgiveness might be doubtful and, without it, the cost could be much too high.

Connecting the Dots

The American Association of University Professors is an important organization, and its emphasis on protection the intellectual property rights of academics is admirable.  It is precisely because their work is so important, and because they often seem to be right on the verge of connecting all of the dots related to copyright, publishing and academic freedom, that their statements sometimes frustrate me.

In November the AAUP issued a report on “Academic Freedom and Electronic Communications” that has been widely and justly praised for addressing the revolution in scholarly communications in the digital age in a comprehensive way and keeping the issue of academic freedom firmly at the center of the discussion.  As this article in Inside Higher Ed puts it, the AAUP is updating long-standing commitments in light of a “whole new world.”  For example, the AAUP has recently reaffirmed its position that the copyright in online courseware should remain in the hands of the faculty creators of those courses, a position that was also endorsed by the Duke Academic Council last week.

It is because the AAUP sees that copyright ownership is an integral part of academic freedom that I find its new report just one dot short of a complete picture.  The juxtaposition of two quotes in the Inside Higher Ed article underscores just how close the AAUP gets to seeing the core of the problem:

“While the expanding digital world has promised to make information freely accessible to a global community, commercial forces have locked up most research behind paywalls and ever-more-restrictive licensing agreements,” the report reads. “Any consideration of open access” must conform with the organization’s 1999 “Statement on Copyright,” which concluded that “”it has been the prevailing academic practice to treat the faculty member as the copyright owner of works that are created independently and at the faculty member’s own initiative for traditional academic purposes.”

The AAUP wants faculty members to own their own copyrights, with which I agree.  And they recognize that commercial interests are locking up research, which is undeniable.  But two facts go unacknowledged in the report — the fact that commercial interests can lock up research only because faculty do not retain their copyrights but give them up for free to those interests and the fact that this surrender of copyright to commercial publishers is a huge threat to academic freedom.
If we needed additional evidence for this second assertion, we got it last week as the news came out (see stories here and here) that publisher Elsevier was sending “take down notices” to the website demanding the removal of article PDFs that the authors have posted to that site in an effort to share their research and facilitate scholarly conversation.  The move is sure to generate bad publicity for Elsevier; one commentator called it an “unforced error.”  The publishing giant just seems unable to comprehend that they depend on academic authors to give them for free the content that they then sell at a huge profit.  But don’t get me wrong; Elsevier is within its rights to do this; as the copyright owner in these articles it can allow or forbid whatever covered uses it wants, and its general copyright transfer agreement with authors does not allow those authors to post the final PDF of articles they have written.
This is precisely my point, of course — because authors have given their rights away to Elsevier, it is Elsevier and not the faculty authors who can determine the scope and depth of any subsequent scholarly discussion about the article.  Faculty options for pursuing their own work are limited by the ownership of copyright by Elsevier and other publishers.  Academic freedom suffers from this common practice of copyright transfer.
The AAUP focuses, in my opinion, on only a part of the problem, and the lesser part of it at that.  They are concerned to protect authors from claims over their work by the universities that employ them, which is a real but infrequent threat.  In the process, however, they ignore the much greater threat posed to academic freedom by the commercial interests that routinely are the recipients of uncompensated copyright transfers.  If the AAUP is really serious about a discussion of copyright ownership and its relationship to academic freedom, they need to be willing to discuss this “third rail” of that conversation, this practice of giving copyright away.  In short, open access, or, more accurately, leaving the decision about access in the hands of faculty authors, is not an optional part of the discussion.
So let’s have a discussion of open access that conforms to the AAUP’s 1999 Statement on Copyright.  But let’s be honest about “prevailing academic practice,” which has been to treat faculty members as the owners of copyright for only a very short time, after which control of the dissemination and use of scholarship has routinely been surrendered to organizations with little or no accountability to faculty members or their representatives.  Perhaps in the print age that surrender did not matter and did not impede academic freedom.  But in a digital age, when faculty have so many more opportunities to share their work and advance their own scholarship, ceding control over copyright is a big problem, with big implications for academic freedom, as the Elsevier attack on proves.  This is the elephant in the AAUP’s living room, and they need to address it by encouraging faculty members to retain their rights beyond initial publication.
For a moment, let’s try a thought experiment.  Suppose a new university is being founded, Innovative University.  At IU the “start from scratch” copyright policy does exactly what the AAUP fears and asserts that all faculty scholarship is work made for hire.  If, at that point, faculty authors had to go to IU to ask permission for ever use they wanted to make of their own works, that would be essentially the same situation that is in place now, once the authors have transferred copyright to the publishers.  If the university did not want a paper to be posted to, they could demand that the article be removed, exactly as Elsevier has been doing.  Both these scenarios are, it seems to me, equal impositions on academic freedom and both, I believe, should be the focus of attention from the AAUP.
But we can carry our thought experiment a bit further and imagine that IU would not want the burden of granting permission for every publication or re-posting.  To avoid that, they give a license to all faculty authors which allows them to post and publish their works wherever they wish and to retain the profits from those publications, if any.  The only restriction on this license is that no copyright transfer or perpetual exclusive license may be granted by the faculty member to a third party without permission.  In that imaginary situation, it seems to me that faculty authors would actually be better off than there are in the current reality, in which copyright is transferred as a whole to commercial interests.  They would have greater certainty and greater flexibility regarding use their own works than they do under the current system, and a much easier channel through which to seek any permission that would be necessary in extraordinary situations.  The University and the public would certainly be better off.  The copyright would not be held by the author, as it is not currently in nearly all cases, but it would be in the hands of an institution whose goals and values are much more aligned with scholars and scholarship than is currently the case.  In short, one can easily image a situation where the worst fears of the AAUP are realized, yet the threat to academic freedom is still less than it is when, as now, commercial interests hold copyright in academic works.
In spite of my thought experiment, I agree with the AAUP that the best alternative is for faculty to retain their copyrights in most cases, as long as they really retain them, so that they, the authors, maintain control over the future of scholarship.  That, after all, is what we mean by academic freedom, isn’t it? Instead of focusing on only one aspect of the copyright issue, a discussion led by the AAUP about IP rights and academic freedom should focus on the potential to more fully exploit copyright ownership to the benefit of its faculty owners.  That means talking about authors’ rights, publication negotiations, promotion and tenure evaluations, and even open access.

Copyright policy here and abroad

Earlier this month, Jonathon Band, who, among his other accomplishments, is the principle attorney for the U.S. Library Copyright Alliance, posted a report of a talk he gave in Seoul, South Korea at a conference on “The Creative Economy and Intellectual Property.”  In response to an invitation to talk about how U.S. copyright policy helped to foster a creative economy, Band made an interesting distinction, one that caught my attention and made me nod my head in surprised agreement.

Band’s basic distinction is this: U.S. domestic policy does help to foster a creative economy because it seeks to balance copyright protections, which do support creative pursuits, with exceptions that limit the scope of claims to copyright infringement.  These exceptions are every bit as to encourage innovation as the protections themselves are, but U.S. policy about copyright in other countries does not similarly support a creative economy.

We can identify two reasons why the U.S approach to copyright in other countries does not support creativity and innovation, based on a distinction Band makes between process and substance.

In terms of process, the U.S. foreign policy about copyright is entirely in the hands of the Executive branch of government, which is very susceptible to lobbying from the traditional content industries.  The important role that the entertainment industries play in any Presidential election is just one reason for this understandable, if unfortunate, influence on the Executive branch.  And because that branch is solely responsible for our foreign relations, we are often in the position, as Band illustrates nicely, of advocating for much stricter copyright provisions abroad than we have, or are allowed to have, at home.

Part of the reason our domestic law is more balanced is because of the role of the courts, who are much less easily influenced by lobbying and who have a great role in maintaining the copyright balance, as we have seen in the important string of fair use decisions that have been coming out of courts all over the country in recent years. But U.S. courts have no role in shaping the kinds of policies we advocate for in other nations.

On the side of substance, our copyright policy toward other countries is determined and expressed by trade representatives, whose goal, naturally, is to improve the market for U.S. products around the world.  Thus their copyright focus is on (primarily) entertainment products that already exist, and which, they believe, must be strictly protected from all kinds of unauthorized use, even if those uses would be allowed in the U.S.  So at the same time that U.S. courts are developing a broad view of fair use that supports digital innovation and new industries, our trade reps are vigorously campaigning to prevent any other nation from getting the (correct) idea that fair use is a good idea if you want to support a creative economy.

To continue this distinction a little farther, I want to look at two other items that came to my attention this week.

On the domestic front, there is this info-graphic about fair use from the Association of Research Libraries, which is a great resource for starting a conversation with academic librarians and faculty members about the space that our domestic courts are opening for innovation, scholarship and creativity with their expanding approach to fair use.  Conveying to our communities that fair use is good news from the copyright front, and that considered, responsible decisions about how to use materials in teaching and scholarship are also quite likely to be good decisions about fair use, is an important role on campus.

On the international side, consider this press release from the European Commission suggesting that open access has reached a “tipping point” in Europe.  The European Community, of course, has been a leader in promoting open access to research and scholarship.  And it is helpful to see open access as a way to simply move past the pressure that the EC and other nations receive from the U.S. to strengthen copyright protections and weaken user rights.  Open access is a way for copyright holders — remember that in spite of the rhetoric, it is authors on our campuses who are the original copyright holders in virtually all works of scholarship — to exercise their rights in ways that are most beneficial to them and to avoid many of the restrictions imposed by secondary copyright holders on access and reuse.  It allows scholars to simply ignore the attempts by industry and the U.S trade reps to ratchet copyright protections ever higher and to use their own copyrights in a way that is true to copyright’s core purposes of supporting creativity and innovation.  Indeed, by making our works of scholarship openly accessible, we provide much needed access to scholars and others, especially in the developing world, access that will be denied if those users have to rely on national policies that are shaped by pressure from the U.S.

In different ways, both the growing consensus around fair use and the open access movement are responses to the issues that Jon Band raised in his talk.  Both are supports for a creative economy.  But it is open access, where authors hold on to their copyrights in order to use their works for the best interests of themselves, their discipline and scholarship in general, that has the most potential to foster growth and innovation both here and abroad.

What I learned getting published by Taylor & Francis.

It was a rather embarrassing moment.  I was in a meeting with other copyright specialists from academic libraries when I received the email telling me that my article with Taylor & Francis had been published.  Before I could stop myself, I expressed my surprise out loud, then had to explain to my colleagues that I had just had an article published in a library science journal published by Taylor & Francis, and that I was not expecting it.  Two sources of embarrassment here.  First, especially following the resignation of the entire editorial board of a different library-related T&F journal due to their archaic authors’ rights policies, this is not a publisher with whom I would have chosen to do business or encouraged authors who consulted me to use.  Second, the fact that I was surprised by this news showed that I had been much more lax in my own decisions about publishing than I advise other academic authors to be.  It is always awkward to be caught in a “do as I say and not as I do” situation, and especially so when you have to explain it to a respected set of colleagues.

So let me explain how this happened and what lessons can be gleaned from my experience.

The story began when I gave a talk at the 2012 conference of NASIG, the North American Serials Interest Group.  Let me say at the start that no one at or representing NASIG did anything wrong in this encounter and that whatever misunderstanding or lack of information existed was entirely my fault.  NASIG provided me with an interesting and engaged audience of librarians, which was all I could ask.  In any case, I signed an agreement, as a “Vision” speaker (kind of ironic), allowing my talk to be mechanically recorded and also agreeing that a human “recorder” would write up what I said for an article for The Serials Librarian.  In due time, that reporter sent me a copy of the article and I agreed that it was a good representation of the talk I had given, ready to be published.  Not until the article was published did I realize that The Serials Librarian was a Taylor & Francis journal, and to the best of my recollection I never signed a copyright transfer agreement with T & F.  At least, I can find in my saved e-mail the agreement to publish in The Serials Librarian but not a CTA.

Again, neither NASIG nor the article author did anything wrong; they sought and obtained all the necessary authorizations from me.  It may well also be the case that the recorder who wrote up the article signed a CTA with Taylor & Francis, which she would have been entirely entitled to do.  But as I say, to the best of my knowledge I did not, and the lessons I take from this incident are premised on that recollection.

So the first lesson is obvious — be careful what you sign.  More careful than I was.  I should have determined who the publisher was and made an intentional decision before I signed that agreement about what would be done with the article that resulted from my talk.  It is quite likely that I would have agreed even after that small bit of research, since the article was actually written by someone else (as, I suppose, a derivative work from my original talk), and I had no further plans to use it in any way.  What I often tell authors is to consider the agreement they are presented with in light of their own plans and hopes for their work, and transfer or license rights in a way consistent with those plans.  If the agreements allow one to meet those goals, well and good; if they do not, negotiation is called for.  The decision should rest with the author.  In the experience I had, I did not make that decision in an informed way, and that, rather than the ultimate result, was the problem.

The second lesson from this experience is that authors choose journals, not publishers.  When I read over the agreement with NASIG, The Serials Librarian seemed like a proper venue for the article resulting from my talk, and I failed to inquire further.  Although I should have done, I did not look into the publisher’s identity because for me at that moment, as for many academic authors, it simply didn’t matter.  The first step in getting academic authors to pay attention to the rights they transfer or retain is helping them realize that not all publishers are alike in this matter, and that they do need some awareness of who is who.

Next, my little story provides an opportunity to remind readers about the issue of joint authorship.  Joint authors are very common, of course, in academia.  Once mostly found in the STM fields, digital humanities projects are now making joint authors out of folks from many different departments.  Joint authorship arises, of course, whenever two or more people each contribute original expression with the intent of creating a unified work.  In the case of my talk, my original expression was fixed in the PowerPoint slides and notes that I had made.  Recorder Susan Davis then created a derivative work from that original, adding a great deal of her own original expression.  Once I had indicated my assent to that process, she and I became joint authors.  Like all joint authors, we each hold an equal and undivided share in the copyright, and are each entitled to exercise the exclusive rights granted by copyright, subject only to a duty to account to each other for any profits (which I don’t expect, in this case).  Because of this situation, if Susan signed a copyright transfer agreement for publication of the article, she was perfectly entitled to do so.  And because of the potential that fact has to create misunderstandings and surprises for other joint authors, it illustrates how important it is in general that joint authors agree in advance, whenever possible, about how their shared work will be used, licensed and made public.

Finally there is this point — if I am correct that I never signed a copyright transfer, and assuming, for the sake of illustration, that Susan did, then Taylor and Francis and I are now joint holders of the copyright in this article.  One thing that means is that I can continue to exercise all the rights as a copyright owner — I could post the article to the web if I wanted to, for example — without consent from T & F.  So when publishers tell us that they need to be the exclusive holder of copyright in every item that they publish, it is important to realize that that may be an aspiration, but it is not a necessity.  In fact, my experience is only one of a large number of scenarios under which publishers routinely publish articles for which they are not the exclusive rights holders.  As we seek to reform the scholarly publishing system, partly by encouraging academic authors to pay better attention than I did in regard to this article, this fact is an important piece of information to remember.