{"id":159,"date":"2009-06-18T05:36:56","date_gmt":"2009-06-18T09:36:56","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/pamphlet\/?p=159"},"modified":"2015-02-08T21:45:11","modified_gmt":"2015-02-09T02:45:11","slug":"dont-ask-dont-tell-rights-retention-for-scholarly-articles","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/2009\/06\/18\/dont-ask-dont-tell-rights-retention-for-scholarly-articles\/","title":{"rendered":"“Don’t ask, don’t tell” rights retention for scholarly articles"},"content":{"rendered":"

A strange social contract has arisen in the scholarly publishing field, a kind of “don’t ask, don’t tell<\/a>” approach to online distribution of articles by authors.\u00a0 Publishers officially forbid online distribution, authors do it anyway without telling the publishers, and publishers don’t ask them to stop even though it violates contractual obligations. What happens when you refuse to play that game? Read on.<\/p>\n

Publishing of research, in the sense of providing for its widespread dissemination, is the means by which new discoveries join the collective knowledge of humanity.\u00a0 The means by which the distribution is implemented has been subscription-based publication via a publisher.\u00a0 Indeed, until recently, this was the only practical means by which research could be distributed, since the cost of the dissemination, which involved printing and shipping of paper, showed economies of scale that individual researchers could not take advantage of.\u00a0 Publishers made revenue by limiting access to the papers to paying customers.<\/p>\n

Not coincidentally, scholars are motivated to publish because recognition of their research by this same system is the currency by which their career advancement is purchased.\u00a0 They are thus forced, effectively as a condition of employment, to make their research available through publishers.<\/p>\n

With the availability of the internet, the marginal cost of distribution of a scholarly paper has been reduced to essentially zero.\u00a0 That particular economy of scale benefit that traditional print publishing relied on has disappeared.\u00a0 Still, participation in the traditional publication system remains important for its peer-review-based vetting system.<\/p>\n

However, recognition of scholars’ research is also measured by other metrics of impact, such as subjective judgements of influence on the field, sometimes formalized in proxies such as citation counts and impact factors.\u00a0 To optimize these metrics, it behooves a scholar to distribute writings universally, to take advantage of the network and its low costs.\u00a0 Study after study has shown that articles available freely online are more widely cited than those that are available only through publishers’ access-limited venues.<\/p>\n

An author has a simple solution to the quandary of whether to distribute through a publisher’s access-limited mechanism or freely online: Do both<\/em>.\u00a0 Unfortunately, publishers typically restrict authors from this approach through contractual limitations stipulated in copyright assignment forms.<\/p>\n

This brings us to the strange social contract.\u00a0 What has arisen, perhaps surprisingly, is a kind of “don’t ask, don’t tell<\/a>” approach to online distribution by authors.\u00a0 Publishers officially forbid online distribution, authors do it anyway without telling the publishers, and publishers don’t ask them to stop even though it violates contractual obligations.<\/p>\n

The standard system for scholarly communication is thus based on widespread contractual violation and fraud.<\/p>\n

Why don’t publishers police their contractees more carefully, as the RIAA does<\/a> with their customers who distribute copyrighted material online?\u00a0 It would be a simple matter to find a small number of violators and send them take-down letters<\/a>.\u00a0 General publicity of this effort would presumably have a substantial chilling effect<\/a> among academics against their routine violation of copyright assignments.<\/p>\n

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.\u00a0 (The situation may be different with music, hence the RIAA’s different strategy.)\u00a0 One can just imagine what kind of backlash an RIAA-style approach would have with academics, in addition to the desired chilling effect.<\/p>\n

Nonetheless, individual authors still breach contracts regularly as they act to maximize their career advancement possibilities.\u00a0 To many, including myself, this state of affairs is untenable.\u00a0 I am not willing to routinely violate contracts in this way.\u00a0 Consequently, I and others have for some time reconciled the two distribution mechanisms explicitly, by amending the contractual conditions of copyright assignments.\u00a0 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.\u00a0 More recently, I have been attaching the SPARC addendum<\/a> to publishers’ assignment forms, and then the Science Commons<\/a> addenda<\/a> that superseded it.<\/p>\n

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.\u00a0 In retrospect, this may make sense.\u00a0 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 hadn’t been assigned to the publisher.\u00a0 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.<\/p>\n

I say that I’ve never had a complaint from a publisher, and that has been true with one exception.\u00a0 This post describes that singular case.\u00a0 It may serve to illuminate several points:<\/p>\n