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.
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.