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Friday, June 19, 2009

Case study in challenging a copyright transfer agreement

Stuart Shieber, ďDonít ask, donít tellĒ rights retention for scholarly articles, The Occasional Pamphlet, June 18, 2009.  Excerpt:

A strange social contract has arisen in the scholarly publishing field, a kind of ďdonít ask, donít tellĒ approach to online distribution of articles by authors.  Publishers officially forbid online distribution, authors do it anyway without telling the publishers, and publishers donít ask them to stop even though it violates contractual obligations. What happens when you refuse to play that game?  Read on....

An author has a simple solution to the quandary of whether to distribute through a publisherís access-limited mechanism or freely online: Do both.  Unfortunately, publishers typically restrict authors from this approach through contractual limitations stipulated in copyright assignment forms.

This brings us to the strange social contract....

The standard system for scholarly communication is thus based on widespread contractual violation and fraud.

Why donít publishers police their contractees more carefully, as the RIAA does...?  We can only speculate that the fear of upsetting their content providers trumps their need to maintain control over the content itself, given that there is no evidence that the online availability is hurting their revenues....

Nonetheless, individual authors still breach contracts regularly as they act to maximize their career advancement possibilities.  To many, including myself, this state of affairs is untenable.  I am not willing to routinely violate contracts in this way.  Consequently, I and others have for some time reconciled the two distribution mechanisms explicitly, by amending the contractual conditions of copyright assignments.  For many years, I have as a matter of course refused to sign copyright assignment forms that do not give me the right of noncommercial online distribution of my work. Originally, I would use alternative copyright assignments that I wrote myself.  More recently, I have been attaching the SPARC addendum to publishersí assignment forms, and then the Science Commons addenda that superseded it.

In the many years that I have been routinely replacing or modifying copyright assignments, I have never had a complaint (or even an acknowledgement) from a publisher.  In retrospect, this may make sense.  Since the contractual modification applies only to a single article by a single author, it is unlikely that anyone looking for copyright clearance would even know that all copyright hadnít been assigned to the publisher.  And in any case publishers must realize that authors act as if they have a noncommercial distribution license whether they formally retain one or not.

I say that Iíve never had a complaint from a publisher, and that has been true with one exception.  This post describes that singular case....

I describe my experience in challenging an irrational and detrimental license clause, and how it spiraled into a battle that resulted in the publisher changing its policy for the journal as a whole. My experience is certainly not unique but accounts are rare, so I encourage others to share their experiences with successful (and unsuccessful) rights retention negotiations with journal publishers in the comments section....

[PS:  Here omitting the long and fascinating story.]

What is the moral of this story?  First, all participants ó including the editorial board and editor-in-chief of the journal, the managing editor, the publisherís staff ó were people of good will. They all acted in ways they thought in the best interest of the institutions they represented and the larger missions of those institutions.  However, to a great extent, they may not have fully thought out the connections between the policies they acted under and the missions.  The editorial board may not have realized that the journalís policy embargoed author distribution; certainly the journalís contributors didnít, or chose to ignore it.  The publisher may not have realized the inconsistencies between the journal policies and the facts-on-the-ground.

But it is also apparent that authors are far too acquiescent in the process of rights retention with publishers.  We are overly willing to accept the rulings of publishers as a fait accompli.  Despite the fact that publishers assert that their policies are supported by their editorial boards, editorial boards are in fact responsive to reasoned arguments.  And although a negotiation for rights retention between an author and a large commercial publishing company asymmetrically disfavors the author, one in which the author is supported by the editorial board is a different matter entirely.  This example calls for taking advantage of rights retention negotiations to enlist editors and editorial boards in the process of expanding access to scholarly articles in a way consonant with law, moving past the ďdonít ask, donít tellĒ social contract.