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Agreements between authors and publishers

May 9th, 2015 | Posted by rmounce in Open Access

April Clyburne-Sherin asked an interesting question on the OpenCon Discussion List recently:

I am an author on a manuscript that my lab wants to publish in a subscription journal that normally retains the copyright. The manuscript is a desirable one so they are “willing” (haha) to provide it “open access” (that was my stipulation to my lab when they started speaking with the publisher). My lab is happy with this, but I do not trust the publisher and want to be able to negotiate a publishing agreement that guarantees:
  • We retain the copyright;
  • The article will be open access forever and no version will be behind a paywall at their journal ever;
  • That there are no sign-ins, registrations, DRM viewing issues, or other ‘free” obstacles to viewing the article.

Comment: Quite rightly, April does not trust the publisher to make the published work fully open access in perpetuity, and wants to do more as an author, with the publishing agreement (a formal contract) to ensure that the publisher will actually provide the exact services she wants.

Recent events this year, whereby Elsevier, Wiley and Springer have all been caught red-handed selling access to hybrid open access articles justifies this lack of trust. It’s a sad state of affairs that authors such as April & myself no longer trust some service providers to actually provide the services we pay them for (e.g. Open Access).

Some helpful links & pointers have been provided on the discussion list, and this may be a concern many other scholarly authors have so it’s valuable to collate, discuss and publicise possible solutions to the thorny problem of publishing agreements with legacy publishers. I certainly don’t pretend to have all the answers here and I think organisations like SPARC might want to act on this one.

Lorraine Chuen links to the Canadian Association of Research Libraries (CARL) ‘Resources for Authors’ page which amongst other things discusses the Canadian SPARC Author Addendum. I knew about the US SPARC Author Addendum, but I never knew there was a Canadian version too!

Matt Menzenski links to the University of Kansas Authors & Copyright page. I particularly like An Introduction to Publication Agreements for Authors (Armstrong, 2009) that they link to at the very top – it’s really useful information.

My Suggested Solutions

For my part, I chipped-in with four different ways that in their own way either partially or wholly fulfil some or all of the criteria April is looking for:

1.) Wait for them to send you their proposed publishing agreement & change the terms to ones you find agreeable

If they send you a standard CTA (Copyright Transfer Agreement) form as PDF, you can modify the wording of that PDF to terms you prefer and send it back to them and they probably won’t even notice as long as it’s signed & doesn’t look too different. It’s cheeky, but I got away with it for a book chapter once. Be careful to remove / replace the term ‘work for hire’ – it may look like an innocuous statement but apparently this is fairly key in legal terms – I neglected to remove that from my book chapter agreement.

 

2.) Transferring away your copyright away to another person
Not as easy perhaps for multi-author papers but Mike Taylor has a good (successful-ish) anecdote about transferring his copyright to his spouse, thereby preventing the Geological Society from taking the copyright of the work.

 

3.) Claim that one of the authors is a US federal government employee
Use Section 105 of the US Copyright Act by pretending that at least one of the authors is an employee of the US Government. Works of the U.S. federal government cannot be copyrighted by their authors in the US – they must be public domain, which is in practice achieved by applying the Creative Commons Zero waiver to the paper. The CTA form may contain a check box asking about this. If not, just email them about it. Michael Eisen famously, successfully liberated a NASA space research paper from behind a paywall at Science (AAAS), using Section 105 as justification.
Will publishers really bother fact-checking your assertion about the employment of one of the authors? I don’t think so. It could land them in big trouble if they dare disregard the US Copyright Act.

 

4.) Simply do not sign, or do not return the unfavourable publishing agreement
Another risky approach is simply not to sign or not to return the CTA the publisher sends you after acceptance (with the obvious risk that this could delay publication). I think this is perhaps the most promising approach, there is strong evidence that many academics currently employ this practice. When you think about it: publishers actually need our papers or they’ll go bust. They need a constant stream of content to justify their existence. If you don’t sign-off on their stipulated terms and conditions, after acceptance, they do have real pressures to get on and publish the paper anyway, especially with the increased focus on optimising submission to publication times these days.

 

I’ll let Reinhard Diestel (mathematician, University of Hamburg) have the last word on this post, it’s a solution I’m keenly interested in trying myself:
I stopped signing away my copyright on journal papers in the late 1990s. Interestingly, almost all publishers reacted either positively or not at all when I did not return the copyright form signed as requested: in all cases did they print the paper in question, usually without additional delay, and sometimes with unexpected understanding and support. (Yes, there have been one or two cases where things were a little more difficult at first, but these too were resolved amicably in the end.)” — http://www.math.uni-hamburg.de/home/diestel/copyright.html

 

  • This is all very interesting. One thing that may require clarification is the statement about lack of fact checking of federal employment status. Readers might interpret this as a call to falsely claim federal employment to prevent publishers from getting the copyright. There may be legal issues that arise from this, but more importantly, it loses the moral high ground.

    • rmounce

      Hi Brian,
      Thanks for the comment!

      You’re right. I _am_ suggesting some authors might want to do something slightly naughty with suggestion #3. Arguably that’s also the case to some extent with #1 and #2 too. Only #4 maintains the ‘moral high ground’.

      These are just suggestions. I’ll leave it to the reader to decide what’s the best course of action for them :)

  • I’m with Brian O’meara. Lying about your affiliation in a professional relationship is not “slightly naughty”; it is unethical. How would you feel if I lied to you about being affiliated with MIT, NASA, or the NSF? Will your coauthors appreciate you making them complicit in your professional dishonesty?

    • rmounce

      Let’s discuss this further, I’m intrigued about the implications of ‘false affiliation’ here.
      “How would you feel if I lied to you about being affiliated with MIT, NASA, or the NSF” — I would be deeply ambivalent, and if I knew you were doing this to avoid signing over your copyright to a legacy publisher I’d be supportive.

      Why does affiliation matter to the scholarship presented? Are you suggesting that reviewers give papers from say MIT an easier ride in review?

      Is badging oneself as an affiliate of the ‘Ronin Institute’ unethical? http://www.wired.com/2012/05/the-rise-of-fractional-scholarship-and-the-ronin-institute/

      I’m aware of authors being paid huge sums to put KAUST on their paper as a joint affiliation and I agree this is unethical (but only because they are being clearly paid to do so). [Sidenote: John Huelsenbeck did this? wow]

      If there’s no financial gain from this action how is it unethical?

      Moreover, I wonder if you aren’t confusing things slightly: employment isn’t quite the same thing as affiliation. I can legitimately be both *employed* by X but put legitimate academic *affiliation* Y on my academic papers. I’m not suggesting authors mask their true academic affiliation.

  • “I’m aware of authors being paid huge sums to put KAUST on their paper as a joint affiliation…”

    That isn’t true. Most likely, you are confusing KAUST with KAU. If you have a citation for that information, please provide it.

    • rmounce

      You’re right, I meant KAU not KAUST. I got that information from Lior Pachter

  • I share the unease of other commenters over misrepresenting oneself as a US federal employee to obtain the publisher’s acceptance that the manuscript is in the public domain.

    Instead, I advocate a much simpler approach. Just place the manuscript in the public domain, and when the publisher asks for a copyright transfer, tell them that there is no copyright to transfer. They accept this in the case of US Federal employees, so there is no reason for them not to accept it in other cases.

    • rmounce

      I really like that idea Mike. Would love to see someone try it out!
      (I’m hoping most of my next few submissions will be to reputable open access journals that let one keep their copyright in their standard agreements, so I may not be able to try this out myself)