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Who Should Own Scientific Papers

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On "Who Should Own Scientific Papers?"

by Martin Blume
The American Physical Society

In the paper titled "Who Should Own Scientific Papers?" [1], a goal for publishing in the electronic era was put forward:

"The authors of scientific works based on government supported research should be free to distribute those works as they see fit, via journals, electronic postings, and other new modes that may appear."

I strongly support this goal and believe it was appropriate even before the electronic era. Further, I would omit the phrase "based on government supported research," with suitable caveats resulting from agreements between scientist and supporting institution. The authors (or signatories) of reference (1) go on to put forward a proposal, for public discussion, that is intended to be a first step towards accomplishing the goal above. The proposal states that

"Federal agencies that fund research should recommend (or even require) that the copyrights of articles or other works describing research that has been supported by those agencies remain with the author. The author, in turn, can give prospective publishers a wide ranging nonexclusive license to use the work in a value-added publication, either in traditional or electronic form."

There are several problems with this suggestion. First, it should be noted that the issue is not copyright, but the rights of authors, as in the goal stated above. We should therefore analyze the proposal to see if it does in fact achieve the goal, and if it creates more problems than it solves.

One immediate objection that should be raised comes from a startling observation: we have a group of scientists, publishers, and librarians proposing that the U.S. government place restrictions on scientists because they have accepted grant money for their research. In most cases a proposal by the government to do this would lead to strong protests by such a group. This is recognized in our article, but a straw-man example of a restriction already in place—that the recipient of such funding is obligated to make the results of the research publicly known—is not a requirement on the same scale. Indeed, since the article was written, the surreptitious passage of a law that requires all data obtained in research supported by government grants to be subject to the Freedom of Information Act has generated widespread (and appropriate) outrage in scientific communities. As worded it appears to require that raw data be immediately available, even before analysis by the scientist and before publication.

There are also circumstances in which an author (for example of a research monograph which contains the results of work supported by government grants) might want to sign over copyright in exchange for financial considerations. This would be precluded, incorrectly I believe, under the proposed policy.

The American Physical Society (APS) already has in place a copyright transfer form which gives to authors essentially the rights outlined in the goal stated in our article. The only difference with that policy and the one stated in the article concerns who holds copyright. The APS chooses to hold copyright on articles it publishes. We also have drafted for consideration a broad ranging license that leaves copyright with the authors, but gives to the publisher the same rights that a copyright holder would have. As mentioned in (1) we need a broad license if we are to continue to maintain an archive of our article in formats and in media as yet undeveloped. This is probably possible under U.S. law, but the international enforcement of such terms (of importance to our publications since two-thirds of our published articles now come from outside the United States) may not be possible, especially in western Europe. Accordingly we have decided to continue to ask for transfer of copyright, and we will continue to give the broadest possible rights to authors. An advantage of this policy to authors is that the author doesn’t have to shoulder the burden of enforcing the copyright against unauthorized and undesirable use of the article. The Society, as copyright holder, can do this for both the author and its journal.

Leaving copyright with publishers who recognize the rights of authors enables publishers to assemble an archive of articles, promotes a much wider distribution of scientific work, and provides the enhanced benefits of digital distribution, with broad linking and searching capabilities not easily attainable with article by article distribution.

In sum, it is not likely that requiring the author to retain copyright will help achieve the stated goal of our article. The appropriate way for authors to do this is to insist on copyright forms that assign appropriate rights for both author and publisher. This can be done by choosing to publish in journals that allow such rights. The proposal limits authors; burdens publishers; and may actually limit the distribution of scientific work, now and in the future.

[1] S. Bachrach et al., Science 281, 1459 (1998)

Addendum

After our articles were completed the contributors to this volume were asked to sign forms giving appropriate rights to the publishers. As the reader can imagine, given the topic of the volume, this produced considerable discussion. In the end we were presented with a license agreement that left the authors with copyright. The agreement had several clauses that I found onerous, including a disclaimer clause and an indemnification clause, which left the authors a potential financial burden in the event of a lawsuit. I myself preferred to leave copyright with the publishers (as can be divined from this article), retaining some rights for myself, and negotiated a different agreement.

Below are the two versions: the first (in the left hand columns) is what had been negotiated to give a license to the publisher, with the author retaining copyright. The second (in the right hand columns) is the one I recently renegotiated and signed, giving copyright to the publisher, but retaining rights to do with the article whatever I could do if I had retained copyright, except preventing the publishers from doing what they wish. In return I got rid of the indemnification clause, which obligated us, in the first agreement, to indemnify the publisher against all sorts of legal fees. I found that a very dangerous thing to sign, and had crossed it out in the first agreement that was sent. The American Physical Society doesn't require authors to sign such an indemnification and hence assumes the burden of payment of legal expenses. In one ongoing case this has amounted to a significant sum (more than three quarters of a million dollars), one which an author should not be asked to bear. I believe that the strong focus on holding copyright, rather than on the rights of authors, has led some of my fellow participants in this study to overlook far more onerous provisions in the copyright or license clauses.

Version 1 (contract signed by most authors of this volume)

American Academy of Arts & Sciences

Author-Publisher Agreement

Agreement made this _____ day of _______, 1999 by and between the American Academy of Arts & Sciences ("Publisher") and XXXXXXX ("Author"). In consideration of their mutual promises, Publisher and Author hereby agree as follows:

1. Publisher hereby specially commissions Author to write essays on "XXXXXXX" (the "Work"), which essays shall be suitable for publication as contributions to a collective work, The Transition from Paper.

2. The Author gives the Publisher a non-exclusive license to publish and that the rights the Author assigns to the Publisher allow the Publisher to act as a licensor for publishing and distribution for printed and electronic copies throughout the world for 99 years.

The Publisher shall have all rights normally given to the copyright holder except the right to prevent the Author, as copyright holder, from independent distribution.

These rights include, but are not limited to, the worldwide right to publish and republish the Work in magazine and book form as part of a collective work, to publish and republish the Work on the World Wide Web, to distribute copies of the Work for sale to the public, and to issue an exclusive license to others for a printed version of the work.

3. Author hereby grants to Publisher the right to publish the Work in a collection or electronic edition. Author will cite Publisher, in a credit line, if author publishes independently.

4. Author represents and warrants to Publisher that the Work be original; that the Author has not entered into or become subject to any contract or agreement with respect to the Work other than this Agreement; that the Work does not infringe on any copyright, trademark, or patent; that the Work does not invade the right of privacy or publicity of any person or entity; that the Work does not contain any libelous matter; that all statements that are asserted as facts are true based on reasonable research for accuracy; that to the best of the Author's knowledge, no formula, procedure or prescription contained in the Work would cause injury if used or followed in accordance with the instructions and/or warnings contained in the Work; that the Work does not violate any governmental security requirement or contain anything which is defamatory or otherwise contrary to the law; and that the Author has full power to enter into this Agreement.

5. Author agrees to indemnify and hold harmless Publisher, Publisher's officers, directors, employees and agents of those to whom Publisher may transfer, license, or otherwise grant rights in the Work, from and against any and all claims, demands, suits, proceedings, prosecutions, actions and causes of action of any kind and any resulting loss, damage, liability, cost expense, settlement, judgment, interest, and penalty including attorney's fees and costs, (a) arising out of any breach or alleged breach of any of the foregoing representations and warranties, or (b) caused by or relating to the performance by Author of any of Author's obligations under this Agreement. If any such sum is not paid by the Author within 60 days after Publisher's demand therefor, Publisher shall have the right to set off any fees and payments due to Author under this Agreement and any other agreement between Publisher and Author against such sum. Author shall take any action or provide any document reasonably demanded by Publisher to reduce or preclude the risk of such a claim.

6. The Agreement constitutes the entire agreement between Author and Publisher. There are no understandings, agreements, representations, or warrantees, expressed or implied, not specified herein regarding this Agreement or the Work. Only the terms and conditions contained in this agreement shall govern the transaction contemplated hereunder, notwithstanding any additional, different or conflicting terms which may be contained in any other documents pertaining to the subject transaction. Except as otherwise set forth herein, this Agreement may be modified only by a written document signed by the party against whom enforcement of the modification is sought. If any provision of this Agreement is determined to be invalid, void, or unenforceable in any respect, the remaining provisions hereof shall continue in full force and effect.

7. This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts applicable to contracts negotiated, executed and performed entirely within the Commonwealth of Massachusetts. Author hereby consents to the exclusive jurisdiction of the Federal and State Courts located in Suffolk County, Massachusetts for the resolution of any disputes arising from this Agreement, regardless of the place of execution or performance of this Agreement.

By signing below, I certify that I have authority to act on behalf of a party listed, and that I accept the terms and conditions set forth in this Agreement.

______________________________

for American Academy of Arts & Sciences

______________________________

Date
__________________________

Author
___________________________

Date

Version 2 (modified and signed by MB)

American Academy of Arts & Sciences

Author-Publisher Agreement

Agreement made this _____day of _____, 2000 by and between the American Academy of Arts & Sciences ("Publisher") and XXXXXXX ("Author"). In consideration of their mutual promises, Publisher and Author hereby agree as follows:

1. Publisher hereby specially commissions Author to write an essay on " XXXXXXX" (the "Work"), which essay shall be suitable for publication as a contribution to a collective work, The Transition from Paper.

2. Copyright to the Work is hereby transferred to Publisher for the full term thereof throughout the world, subject to the rights below that Author may freely exercise. Publisher shall have the right to register copyright to the Work in its name as claimant, whether separately or as part of any medium in which the Work is included.

Author shall have all rights normally given to the copyright holder except the right to prevent Publisher, as copyright holder, from independent distribution.

3. Author will cite Publisher as copyright holder in a credit line should Author publish or circulate the work independently.

4. Author represents and warrants to Publisher that the Work be original; that Author has not entered into or become subject to any contract or agreement to the Work other than this agreement; and that Author has full power to enter into this agreement.

(omitted)

5. The Agreement constitutes the entire agreement between Author and Publisher. There are no understandings, agreements, representations, or warrantees, expressed or implied, not specified herein regarding this Agreement or the Work. Only the terms and conditions contained in this agreement shall govern the transaction contemplated hereunder, notwithstanding any additional, different or conflicting terms which may be contained in any other documents pertaining to the subject transaction. Except as otherwise set forth herein, this Agreement may be modified only by a written document signed by the party against whom enforcement of the modification is sought. If any provision of this Agreement is determined to be invalid, void, or unenforceable in any respect, the remaining provisions hereof shall continue in full force and effect.