Author’s rights: let’s be clear on the problem

There are a number of available remedies (e.g. 1, 2, 3) to the problems posed by authors signing away their copyright to academic journals. But the thicket of solutions and the surrounding rhetoric can sometimes muddy up what the real problem is. So let’s be clear:

  • Researchers want to publish their research in academic journals.
  • As author, the researcher owns the copyright inherent in her article. (This doesn’t apply to works produces by government employees, such as intramural NIH researchers, which are not subject to copyright and are in the public domain. Different considerations apply when the author is an employee or contractor and agrees contractually that the employer or client will own the copyright in the work. But this is the situation for most academic researchers.)
  • These journals often ask researchers to transfer exclusive copyright to the journal as a condition of publication. This “request” is usually in the form of a boilerplate template license (which is not presented as negotiable).
  • If the author signs away her copyright, then (absent any other agreement, such as a journal policy or an accepted addendum to the copyright transfer agreement) the author will not have sufficient rights to self-archive a copy of her article in an open access repository (aside from any rights which may exist under fair use or other copyright exceptions) or to make it available under an open license (such as a Creative Commons license compatible with the BBB definition of open access).

The existing journal policies and author addenda vary in their specifics: not all of them offer as much flexibility for the author as is desirable for open access. (For instance, they may specify that only certain versions of the article manuscript may be self-archived, or only in certain locations — e.g., on the author’s personal Web site but not in a disciplinary repository — or may not allow the author to apply a CC license to the article.) It’s also important to note that not all journals ask for exclusive copyright: some ask only for the rights necessary to publish the article; others (particularly open access journals) require the author to agree to a CC license.

But for journals that do ask for exclusive copyright, the problem isn’t that the author is giving the journal too many rights (as is sometimes portrayed in the rhetoric around this subject). Rather, the problem is that the author isn’t keeping enough rights. If we were discussing a tangible object, then the preceding two sentences would be semantically identical, but copyright is an intangible: the author can give away rights and keep them at the same time. This point isn’t always made clear.

The ideal approach, then, gives the broadest rights to both the journal and the author. Most important here is the author: as I’ve mentioned, some of the existing addenda and journal policies are too narrow in their “grant” (return) of rights to the author. Ideally, the author should end up with a set of rights as broad as copyright itself: either copyright itself, or a non-exclusive, royalty-free, irrevocable license to do anything with the work (including to sub-license it).

But there’s also little harm in giving a broad grant of rights to the journal. In fact, we can imagine a harm in giving too narrow a grant of rights: for instance, a well-meaning journal that wishes to reproduce the article in a way that will improve access or usefulness, but which was only granted (say) a right of first publication and of reproduction in the original medium — combined with an unlocatable author (or her heirs), the article is effectively an orphan work.

We can imagine few objectionable uses of a scientific article — or at least, few objectionable uses to which we think the author should actually be able to object: this is one the premises of open access. So there’s not much harm in giving the publisher, as well as the author, wide leeway in permission to use and re-use the article.

(As always, I’m not a lawyer, this is not legal advice, etc. …)

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