The ethics of copyright transfer for scientific research
So I’ve been thinking a bit about copyright issues with scholarly research recently, and have a few questions about the ethics of copyright transfer. Typically, the process of copyright transfer for research articles happens something like this:
- Researchers submit a manuscript to a journal for peer review.
- Should that paper be accepted for publication after peer review, the publisher requests that authors transfer copyright to them.
- This usually is a condition of publication – no transfer, no publication.
- The corresponding author, or the author in charge of submission, signs a ‘copyright transfer agreement’ (CTA) with the publisher.
- This transfers all rights to that content from the authors to the publisher.
This is the typical scenario unless the article is for an Open Access journal, but even then sometimes copyright transfer is still required (e.g., this paper of ours published by Cambridge University Press). The process will vary a bit between publishers, but this describes the general situation.
It seems that many researchers still do not fully understand the implications of this process to me – I mean, it’s a bit complex after all, and more like an annoying final hurdle in the publishing process. Like accepting the terms and conditions for an iTunes update – no one really reads it, or understands it. For example, we often see things like researchers complaining when they are asked by publishers to remove final version copies of their papers online. Well, you know what signing a copyright transfer agreement does? It transfers your copyright to someone else, and publishers are then well within their rights to ask you to remove copies. It’s not exactly the smartest tactical PR from publishers, but it does happen – look at the ongoing ResearchGate scandal, for example.
What does this mean
Based on this process, the following key questions arise to me:
- Should researchers be allowed to sign away the rights to publicly funded research (or otherwise) in the first place?
- Should just one author (usually) of a paper be allowed to sign away copyright on behalf of all authors? And often potentially without their knowledge or consent?
- Should copyright transfer be allowed to happen after acceptance as a condition of publication?
This third question is most important to me, as it reveals an incredibly strong power imbalance on the process. Under this scenario, rights are less ‘transferred’ and more acquired, almost seemingly by blackmail (‘no transfer, no publication’). At the moment, because this ‘request’ happens after acceptance, it is virtually impossible to decline. No researcher, after going through the laborious process of submission and review, will want to do anything to potentially delay the sharing of their findings, or compromise their chances of being published. This is because publishing articles counts for so much for career progression, it would be career suicide to decline.
So why are researchers not made aware prior to or during submission that this will be a conditional step of publication? The process could be changed to something as simple as this: During article submission, a simple box which asks “Are you aware that, should your article be accepted, you will be asked to transfer all rights to your research to the publisher? This will have implications such as x, y, and z.” Yes/No. Here, the major legal implications of this should be made absolutely clear, such as authors not even being able to share the final published versions of their own work.
Potential impacts
I imagine some of the possible consequences of this could be:
- Authors refuse to submit, and select a different journal instead (e.g., an Open Access one).
- Authors become more aware of the implications of copyright transfer, including the restrictions on sharing.
- Authors become more aware of self-archiving (or ‘green open access’) options.
- Authors challenge the copyright transfer process more generally.
- Authors don’t care or don’t mind, and submit anyway.
- It becomes conditional for all authors to sign any CTAs.
- Publishers are forced to be more explicit up front about copyright transfer, instead of concealing it towards the end of the process.
And what happens if an author should choose to decline the agreement? Well, the publisher then can simply say they won’t publish their article. In which case, they have to go through the whole cycle again. Or, the publisher might ask for a different agreement such as the exclusive rights to publish, with the author retaining some of their rights. However, I’m not sure it is documented anywhere how frequently this has happened in the past, or whether using rights-retention tools such as the SPARC author rights addendum is widely successful.
So my question is, how ethical is all of this? And why is no-one asking these questions of the scholarly publishing industry?
Why is this important
Well, imagine if it turns out that the basis for many copyright transfer agreements became null and void due to improper acquisition. This would mean that control of research articles could be regained by authors from scholarly publishers. Even entities like Sci-Hub could ultimately become legal! This could potentially free an enormous amount of published research to the public, which would be great. It could also have severe ramifications on the scholarly publishing industry, who largely rely on the commodification of these copyrighted articles as their primary products.
Now, I’m a palaeontologist, not a copyright lawyer, so am not an expert on these matters by any means. But I think something here is iffy, and could do with further discussion or investigation.
What do you think
So a few questions that would be great to get some feedback on from the wider community:
- Do you ever feel like you were ever pressured to assign copyright under duress from a publisher?
- Did it ever transpire that you signed your copyright away without even realising?
- Were explicit conditions ever made clear to you about the implications of copyright transfer?
- Would you submit to a journal, knowing that at the end they would request transfer of copyright?
- Did you ever question a publisher about any of the above, and if so what was the response?
The elephant in the room here is whether or not it is even ethical for commercial entities to own the rights to scholarly research outputs. But that’s a whole other conversation for another time.
For at least ten years (not sure exactly when I started doing this) upon acceptance of my paper I have refused to sign a CTA. A few publishers have said “sorry, you have to do sign our CTA or we can’t publish your article” and I have replied “in which case I’ll take my piece elsewhere”, and they have ALL crumbled, and come back with a pdf of a licence to publish where I retain all rights other than journal publishing rights. Others have simply crumbled right away and sent me such a pdf without even trying it on. Publishers clearly have these licence to publish pdfs already there as a backstop for dealing with awkward buggers like me. At worst, my approach has delayed final acceptance by a couple of weeks. Employers should instruct their staff not to sign a CTA but instead to demand a licence to publish and in my view success would quickly follow.
Thanks for your comment, Charles. So this is a ‘transfer or publish’ process then right? Which I seem to recall is illegal, as doesn’t Copyright have to be willingly transferred? This is the point which is bugging me most about all of this.
I think the problem is encapsulated in your post – most authors don’t know or care, they just want the damned thing published by that stage, as they’ve already moved on. It would be interesting to know how many publishers don’t have “Licenses to Publish” that restricts the rights the publisher can have? (Maybe @stm_assoc will know)
I worked for a professor who routinely returned the signed transform form, but with modified text, stating the authors retained copyright but permit the journal to redistribute (I don’t know the legal terminology). Every journal article with said form was still published with the Journal’s copyright disclaimer (obviously, the journals weren’t even reading the form that was returned, but if they had tried to sue…)
Also of note…I’m not even sure that many authors for paleontological descriptive papers have full rights to sign away copyright. Many museums require copyright for any specimen imagery to remain with the museum (which is an ethical morass to discuss at another time); although these agreements often will say something about allowing academic publication, they say nothing about allowing the copyright to be transferred to the publisher!
Johann, I was thinking of proposing to you that all your scripts should be modified to add the following conditional compile directive: /* The following compiler directive is necessary to enable editing scripts within Visual Studio. It requires that the “Conditional compilation symbol SCRIPTENV be defined in the Visual Studio project properties This is because EPLAN”s internal scripting engine already adds “using directives when you load the script in EPLAN. Having them twice would cause errors. */ #if SCRIPTENV using Eplan.EplApi.ApplicationFramework; using Eplan.EplApi.Scripting; using Eplan.EplApi.Base; using Eplan.EplApi.Gui; #endif /* On the other hand, some namespaces are not automatically added by EPLAN when you load a script. Those have to be outside of the previous conditional compiler directive */ using System; using System.IO; using System.Windows.Forms; using System.Collections.Generic; using System.Linq; By using this method, it allows you to have “using directives that would otherwise make EPLAN throw an error when loading the scripts. What do you think?
Did you ever question a publisher about any of the above, and if so what was the response? – Over the past 10 years I’ve engaged this pretty regularly. My approach is to ask for the alternative agreement that it is the nonexclusive license to publish. Usually one appears in about an hour. In one case, the caveat was that the piece I wrote would then not be copyedited – which seemed a bit unsmart of the publisher but I was fine with it. In only one case has the publisher walked away, but I hadn’t written the piece – I was solicited to author something for a scholarly encyclopedia and when I wouldn’t accept the terms, I declined – but that doesn’t fit your case here of submission + post-review being presented with the agreement. Now, for articles, I just ask in advance for the agreement.
So all of the stuff I have published has been Open Access, so usually I don’t personally encounter the issue. However, when I challenged CUP about it, they said there was nothing they could do and that signing away copyright was a condition of publication, despite the article being OA.
When I’ve raised the issue publicly, publishers typically shy away. I think we can guess why..
I want to ask if anyone knows of any other journals besides JAVMA and AJVR (American Veterinary Medical Association journals) that require authors to sign away copyright just to have a manuscript reviewed.
It used to be that authors could submit a copyright addendum with their AVMA manuscripts to retain more rights.
The association announced the change In February 2017 in an editorial that included other changes also: Journal of the American Veterinary Medical Association
February 1, 2017, Vol. 250, No. 3, Pages 258-259 https://doi.org/10.2460/javma.250.3.258
“Take another look at the instructions for authors” Kurt J. Matushek DVM, MS Editor-in-Chief
https://avmajournals.avma.org/doi/full/10.2460/javma.250.3.258
From the editorial” Authors of published manuscripts are required to transfer copyright to the AVMA. In the past, the journal has sometimes had difficulties obtaining completed copyright agreements. Currently, therefore, manuscripts will not be considered for publication until a signed copyright agreement has been received from each author (copyright automatically reverts to the authors in the event that the journal elects to not publish the manuscript). To assist authors, the journal has recently created an electronic form that authors can complete, sign, and submit electronically (http://jav.ma/JAVMAcopyrightagreement for JAVMA manuscripts and http://jav.ma/AJVRcopyrightagreement for AJVR manuscripts).”
Source: https://www.avma.org/News/Journals/Documents/javma-caa.pdf
“Copyright Transfer. In consideration of the acceptance of the above Work for publication, I do hereby assign, transfer, or otherwise convey exclusively to the Publisher all my rights, title, and interest in and to the copyright, any and all rights incident thereto, inthe Work, including all its graphic, photographic, and image-related elements. This assignment transfers exclusively to the Publisher all of my rights under any law governing moral, publicity, or privacy rights or other proprietary rights directly or indirectly relating to the Work assigned. This assignment applies to all translations of the Work as well as to preliminary display or posting of the manuscript or its abstract in electronic form prior to publication. (Note: Material prepared by employees of the US government in the course of their official duties cannot be copyrighted.)”
Was the legality of such transfer agreeements ever tested in court? At least in Italy, as far as I know a contract can be deemed invalid if it lacks a “sinallagma”. In short, if a party gets something in return for nothing, the contract is suspicious.
https://en.wikipedia.org/wiki/Synallagmatic_contract
In the JURI committee discussion of the proposed copyright directive, several amendments were tabled for a “rights reversion” mechanism, for instance 961 on article 15: «Member States shall ensure that contracts include a rights reversion mechanism, allowing authors to terminate a contract in cases of unsatisfactory promotion, remuneration or lack of transparency».
I would have expected more authors associations to write letters in favour of such mechanisms. The main use case is orphan works, or other cases where the authors signs away their copyright to the publisher but then the copyright just sits there and the author doesn’t earn much if anything from it.
Well, I believe that under copyright law (and IANAL), the copyright in works made in the course of employment (works made for hire) belong to the employer. Thus it would appear the author does not have the legal right to sign away that copyright. Hence most such copyright transfers made by researchers should arguably be invalid!
However, this is another of those ‘inconvenient truths’. It is ‘customary’ to regard most research writing by academics as belonging to those academics rather than their university employers, although there is not very often a formal policy on this* (oddly, not so much the case for the potentially much more valuable IP in patents). Where universities have attempted to enforce this, there has generally been a strong kick-back from the community. Whether it is either legal or ethical for authors to sign away copyrights that they only have a customary (rather than legal) right to, is an interesting question!
* I believe JISC commissioned a paper on this many years ago, maybe early 2000s, which it would be interesting to repeat.
Cheers for this, Chris. Is this a US/UK thing, or more broad do you know?
It’s a mostly USA thing:
https://en.wikipedia.org/wiki/Works_for_hire
The matter is mostly studied in relationship to open access mandates (whether they are legal, how far they can go etc.), for instance:
https://www.rd-alliance.org/sites/default/files/harvard_policy_open_access.pdf
In EU, the most common legal argument is around academic freedom (which is enshrined in the Italian and German constitutions due to experience with fascism), see e.g.:
http://www.michaeleisen.org/blog/?p=1807
Other than that, the most relevant laws may be others, such as labour laws and public administration laws. For instance, in Italy art. 53 D.Lgs. 165/2001 applies: full-time professors cannot have additional jobs (not even consultancy) unless approved. It could be argued that academics working for proprietary private journals, possible even if unpaid, need to seek authorisation.
OK, IANAL and Wikipedia is not a fully reliable source. But see the Ownership section of https://en.wikipedia.org/wiki/Copyright_law_of_the_United_Kingdom. Note:
“Works created in the course of employment[edit]
“Where the apparent creator of the work composed it in the course of employment, the employer is treated as the first owner of the copyright.[10] It is important to distinguish between works which are created whilst one is an employee, and works created whilst one is acting in the course of employment. It is only in the latter case that the exception applies.
“It is possible for contracts of employment to contain express assignment clauses or to otherwise deal with the ownership of any intellectual property rights created by an employee.”
Note, AFAIK few if any academic employment contracts in the UK contain express clauses assigning ownership of the copyright to the academic. You could check your own, for instance.
I was also struck by this earlier paragraph that I had not noted before:
“Joint authorship[edit]
“If more than one person qualifies as an author then a work is one of joint authorship. Under the 1988 Act, a work of joint authorship is a work “produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors”.[16] Where the work is one of joint authorship, the consent of all copyright holder is required to avoid liability for infringement.”
Bearing in mind that many of the “authors” of multi-author academic articles have contributed precisely nothing to the actual text (the only thing copyrighted), as opposed to the work that preceded the text, then the transfer of copyright by the “first author” or “corresponding author” looks dodgy. I guess if all the actual co-authors had signed a document empowering the first author so to do, it would be OK.
On the face of it, many past “copyright transfers” may be invalid, or at least challengeable!
Many academic contracts have a clause expressly granting copyright of research outputs to the employee.
Cool, but how common is this? And how often is it violated..? And how many researchers are even aware of it, if it applies to them!
Authorship in terms of the law is decided on the facts, not on assertion. A court will weigh up the actual contributions of each and every author and decide accordingly. Thus in your example any ‘author’ contributing nothing will not have any copyright and therefore no infringement will be possible.
I should have added that the “course of employment” thing is critical. If you write a cookery book but your employment is studying velociraptors and shit, the cookery book belongs to you not the employer. But if your University requires you to research and publish, then it looks hard to argue that the resulting works are not made in the course of employment! So they belong to the University, so only the University can transfer the copyright.
Of course the publishers would argue that the first author is acting as an agent of the University in so doing. But I doubt you are empowered to enter into other contracts on behalf of the University!
Authorship in terms of the law is decided on the facts, not on assertion. A court will weigh up the actual contributions of each and every author and decide accordingly. Thus in your example any ‘author’ contributing nothing will not have any copyright and therefore no infringement will be possible.