 |
|||||||||||||||||||||||||||||||||
 
 
 
 
|
 |
ABSTRACT
There is little adversity, apparently, between the creators of new knowledge and the academic journals that publish their work. Instead, the two seem to enjoy a symbiosis of purpose in seeking the widest possible dissemination of a published article. However, only the publisher gets paid while the author settles for loftier goals. Yes, it is a conundrum. Academic authors are content to sign away all rights to their journal articles. Receiving remuneration is virtually never suggested, and the authors are just grateful to see their ideas and discoveries accepted for publication and shared with the widest possible audience. Other findings of this study are: Methodology This study took place from May through October 2000 to assess what journal editors and publishers require in author permissions. Thirty academic disciplines, from accounting to zoology,1 were selected from university listings of departments. Then the top three journals, based on circulation or prestige, in each field were identified using 'Magazines for School Libraries' by Katz and Katz.2 Names of the current editors were taken from journal mastheads along with their email address if it was provided. Approximately 65 journal editors or publishers did offer email addresses, and these were contacted as the study's sample. However, the sample actually approached including contracts for more than 500 journals because most of those who responded were journal editors whose publishers (associations, societies or university presses) publish several journals. Some fields have developed and adopted a standardized copyright transfer form for all journals in the discipline. The half dozen or more commercial journal publishing houses represented in this study have adopted standardized forms, often available on their web site, that may represent those used by dozens of journals across disparate disciplines. The email request asked for a copy of the 'permission' or copyright transfer form and for answers to this series of questions about how the forms are used: 1) how long have you been using the form, 2) does the publisher require it, 3) do most authors sign, 4) what happens if an author doesn't sign? Fewer than 20 editors and publishers answered the four questions, but dozens of contract forms were sent through the mail or provided at a web-site address. The web-site was accessed, and a web search was used to try to access the other 25 journals (from the original 90, the top-three in 30 disciplines). A total of 50 non-duplicated contract forms sent or accessed on-line was analyzed for this study.3 Content of the Contracts Findings are presented first in categories of similarities the copyright transfer forms exhibit. These commonalties include examples that show the range of content: that which is most restrictive to authors and that which is least restrictive. Contract titles. The titles of these contracts were diverse. Some examples were 'copyright transfer,' 'copyright assignment agreement,' 'copyright form,' 'copyright agreement,' 'permission to print,' 'publication agreement,' or similar uses of these words. Some contracts were not titled. The vicissitude in titles may have no implications whatsoever because even an untitled contract must clearly state that the author is transferring copyright, if that is the document's purpose. However, 'copyright transfer' is an explicit title while 'publication agreement' may cloak the contract's intent. Scope of the contract. They ranged from a single page consisting mostly of signature blanks to multiple pages that were either loaded with legal jargon or very down-to-earth in text. A few included question-and-answer statements such as 'What rights do I have as...author?' followed by the list of author rights. Some of the contracts included additional pages, such as forms an author might use to secure necessary permissions for previously published material appearing in the article. Some had cover sheets with guidelines on procedures for completing and returning the contract. Other contracts focused on the difference between articles produced by U.S. government workers (which can't be copyrighted), those already copyrighted in Britain (a Crown copyright, which must be licensed to the U.S. publisher), and those produced while working for a commercial employer (which might require additional permissions). In all, the variety of content in these contracts suggests: In fact, at least half the forms were pre-review contracts: those that are sent for authors' signatures before the review process begins. The percentage of contracts that transfer rights prior to editorial board review suggests that many journals want the transfer issue settled before dealing further with any submission. However, transferring rights is neither debatable nor a point of concern for publishers or authors because everyone signs. Almost none of the pre-review contracts specified a review time limit, but one did say 'the gestation time between acceptance and publication currently averages about eight months' and another said the copyright agreement 'will terminate if we do not publish the Work within two years of the date of your signature(s).' Introductory explanation. About half of the contracts contain some wording that explains why the author is being asked to sign. An example from a society is that the form was developed with great care to promote interests of members and contributing authors, that the author may not substitute other forms or make changes in wording, and that the author must sign if the work is to be published. A pre-review contract had 'in consideration of reviewing and editing this submission, the author(s)...transfer(s) all copyright ownership to the journal in the event the work is published.' Several contracts indicated early that the transfer of copyright is to help the journal disseminate the article, suggesting that the journal is best positioned to act as facilitator to have the work copied and reprinted. A commercial journal publisher's statement offered that the copyright is acquired to assure that requests for permissions to reproduce are 'handled systematically and in accordance with a general policy that is aware of the market and any relevant changes...and ensures the widest possible dissemination of the journals, while protecting against possible infringements of the rights of both the Author and the Publisher.' A multi-journal discipline association publisher explained that it requires the signed copyright transfer form so it can do 'business as usual,' but then included clauses that returned generous rights to the author and employer so that they, too, may do 'business as usual.' However, fewer than half of the contracts offer any preliminary explanation prior to the opening copyright clause. Copyright clause. This is clearly the most important and usually the first section of the contract. Almost all contracts require that the copyright will be transferred to the journal. Three examples of highly detailed points from this section follow: 1) The assignment of all rights, copyright, profits, the right to reproduce, to prepare derivative works based on the article, to distribute by public sale or other transfer of ownership, to assign the copyright to others; to perform or display the article publicly; to publish in other journals and books; to grant permission to abstracting and indexing services; and to grant permission for photocopying beyond the limits defined in the law;After similar wording, another publisher requires receiving, 'The right to collect and retain royalty and licensing fees related to the re-publication of this material when the (society) licenses usage by others.' This is one of the few clauses that specifically mentions royalties, fees or that suggests any income may be accruing to the publisher. Therefore, while the copyright clauses all tacitly transfer pecuniary rights to the publisher and occasionally use the words 'sale' or 'sell,' this financial reality is seldom explicitly stated. One contract did specifically require the author 'to refer all requests to republish, reprint, or reproduce all or any part of the work including electronic, Internet, or any other means to the publisher.' If the copyright clause for journal articles seems to mirror the rights a book publisher might expect, that is the intent. Several contracts specifically included reprint rights. An example was the right to 'reprint or translate all or any portion of the Author's article to be published in a reader, anthology, second serial, digest, syndication, non-book (dramatic, motion picture [sight and sound], radio, television, electrical recording).' Respondents to the survey's questions noted that in the time they were journal editor, sometimes for 20 years, no author had refused to sign the copyright transfer contract. Although the consistency of including these clauses suggests that transfer of copyright is mandatory for publication, a single contract did not require it. In this form the author allowed the society to publish and to reprint the article in at least one of its six journals, but noted that signing the form 'does not constitute transfer of copyright.' Thus, it is possible for a journal publisher to both print and reprint without holding the copyright. However, the society also used a copyright transfer form for articles to which it did intend to hold copyright. One other journal that asked for copyright granted back to the author(s) all requests for non-commercial use in classrooms, libraries and research to further the goal of disseminating scholarship. The society noted that most requests come from its members, and that it did not grant reprinting to corporate or commercial entities or to anthologies, other than tables or portions for textbooks. 'However, the author is free to sell or otherwise use his or her article.' Only one press (that publishes respected journals across disciplines) got to the crux of the copyright matter in a 'Permission to Reprint' form in a section called 'Copying beyond Fair Use. "Here making copies for personal or internal use, or for use of specific clients, was permitted if the copiers 'pay the stated per-copy fee through the Copyright Clearance Center." Copying currently constitutes most of the fees journals collect from articles, which are generally not sold as book chapters, performed in public or sold as movie scripts. With copyright transfer, only the copyright holder is entitled to grant and collect copying fees. The publisher sets a per-page fee and authorizes the Copyright Clearance Center to collect that fee for each copy made. Amounts may vary, but one physics journal stated its CCC fee was $17 per copy per article. Unless otherwise stated in the contract, which almost none did, the author cannot authorize or collect fees for copies. The other substantial stream of revenue to publishers is the sale of database rights to libraries. However, this form of sale must be assumed because it was mentioned specifically in only one contract. Here the society 'may assign its copyright rights to other entities to publish or distribute (the society's) publications through print or electronic media, including but not limited to CD-ROMs or electronic databases.' This review of the transfer clause confirms that virtually all of the publishers demanded copyright. Yet, the copyright clause is not always a one-way street, as will be discussed in the section on author rights. Warranty and indemnification clauses. Most contracts contained some elements of both warranty and indemnification. The warranty is an author's guarantee about the authenticity of the work. Among warranty statements in the contracts were clauses such as: 1) The work is original…it is not plagiarized or fraudulent; it does not infringe on proprietary rights or statutory copyright, is not previously copyrighted or registered with the Library of Congress, or if so these rights will be transferred or assigned to the journal; The warranty clauses
can be very detailed, including most of these points, or truncated,
including only a few. All warranty clauses contain statements that the
work belongs to the author(s) and that it has not been published previously.
Three contracts included an extensive section on authorship ethics,
including this one: Federal government
employees. About half the contracts mentioned or included a separate
signature form for articles created by federal government employees
as part of their job. All such mentions explained that work so produced
cannot be copyrighted, but that signatures are required to attest to
the authors' status and that the work was produced as part of the job.
Work produced under a government contract requires the contract number.
a) In future books. Chief among authors' rights given, in about 40 percent of the contracts, is the right to use the article in any future book the author writes or edits. This contract wording means that the author may not authorize the article to be reprinted in another authors' or editors' work. In fact, most that included the point were similar to one contract limiting the author's republishing to 'any scholarly work consisting solely of your own writing.' Others allowed re-use in future collections of the author's own (or author's edited) work with the proper journal citation, and one allowed authors' use in any subsequent work for which he or she is author, editor or contributor. One of the largest national journal publishers included three paragraphs on web posting allowing: 1) preposting at submission with notice on the first screen that the copyright may be transferred, 2) after-acceptance posting on the author's personal server but not on any preprint server, and 3) after publication on the author's personal server with the first line of the web page showing the copyright and denying copying or reposting the article without explicit permission. This was the most detailed contract on web-site posting policies. Another large, multi-journal publisher approached web posting in a similar manner for preprints on secured sites while prohibiting external distribution. After publication, the preprint web version had to include the journal's copyright and a link to the journal's web site. The author was not allowed 'to update the preprint or replace it with the published version of the Contribution.' However, the author could photocopy, transmit on-line or download and print out and distribute to colleagues 'for the Contributor's personal or professional use' for educational or corporate informational purposes. A company-owned contribution could be used the same way internally but not externally without paying a fee. One society allowed the author to post the original article, but not the journal's formatted files, if access to the server did not involve a fee. A society's journal allowed personal web posting of pre-published articles with a disclaimer that the article had not undergone society peer review. After publication, the society asked that the journal's PDF version be posted to the web so proper credit would be given to the publisher and warned that posting an altered article represented as a duplicate 'constitutes copyright violation.' Again, the more usual approach to web posting was the statement, 'The Author agrees not to post the article on any personal, university, or association web site.' These Internet use concerns and inconsistencies suggest that publishers' views about web posting is still in flux. Right to resell. Journal publishers retain resale rights. Many of the contracts that mentioned resale or reprints to a third party specifically noted that the author's permission might be sought but was not required. Terminology was similar to: 'The Owner (publisher) may grant third parties permission to copy all or part of the work. If such permission is given, the Owner will, as a matter of courtesy, and not as a matter of contract, advise the Author or Employer of such permission.' Only one contract read, 'Authors retain a perpetual, royalty-free license to reprint their material without question or charge.' Another contract divided the article into portions: text, tables, figures. Up to three items could be negotiated for use from the publisher with a fee, but four-plus items also required the author's permission. The more common contracts detailed the rights the publisher retained including first publication worldwide, right to any reproduction, right to license to third persons for photocopying, license to create abstracts, and license to secondary publishers to reproduce the work in any form. One major journal publisher included wording noting that the contract would bind the author's heirs and executors. Thus, the author's possible beneficiaries could not claim rights to the article, but neither would they have responsibilities as 'all obligations of the Author are personal and non-assignable.' However, the publisher's rights under the agreement would be retained by 'the successors and assigns of the Publisher.' Read and correct proofs. Again, this right was not mentioned frequently. When it was, conditions required return by the date the editor sets or the journal can publish without such corrections. One journal said that the editor can make changes that do not affect the substantial meaning of the authors. Authors could review such changes and withdraw the manuscript from publication if not satisfied. Author copies and offprints. Most journal article authors expect (and usually do receive) a free copy of the journal edition in which their article appears. It is common practice for the journal to send the 'corresponding' author enough copies to share one each with co-authors. However, this benefit rarely appears in the contract forms. In fact, in only two contracts did the publisher agree to supply the author with two complimentary copies of the journal issue and to send two copies each for multiple authors. One large publisher supplies the author with 10 copies of the work, to be divided among multiple authors, and two copies of the issue of the journal in which the article first appears. One journal gives 25 free offprints; three others give 50 offprints as part of the contract; another provides 100 offprints and includes the author's right to distribute these. Another allowed 'the right to reproduce reasonable quantities for personal use if 100 reprints are purchased.' Another specifically stated that the author could 'distribute your own offprints.' One other agreed to provide the author, 'gratis, with an electronic file of the text of the Work' and promised to request a copy of any book in which the work appeared, gratis, to the authors. Conclusions and Observations If anything, the review of contracts is remarkable in having only a single element required by all (with two exceptions): the transfer of copyright. One other contract was saved for this section because it served a dual function. The form allowed the society 'unlimited rights to publish and distribute the Work' and receive payment while the author retained copyright. Under this plan, the author can duplicate and allow others to duplicate, except reproduction services that collect fees. Thus the publisher is still the only one authorized to be paid for the article. Should the author retain copyright, the society 'is not responsible for protecting the Work from misuse by others.' However, this contract strongly recommends that authors transfer their copyright to the publisher and offers three 'transfer' paragraphs, but the author can strike out the paragraphs to deny transfer. In its effort to secure copyright, the society explains that the transfer, 'empowers the Publisher on behalf of the Author(s) to protect the Work and its image against any unauthorized use and to properly authorize dissemination of the Work' by all means. Herein lies the dilemma for academic journal article authors. It appears that in only one contract did the author retain all rights except the 'first publication' rights that allowed the journal to publish. In the dual contract described above, the author can retain copyright but cannot collect fees for the article once published. In all other cases, copyright is transferred to the publisher. The tradeoff, of course, is that few if any authors are interested in or capable of handling future article rights sales, disseminating the article or protecting it against copyright infringement. Therefore, by retaining copyright, authors merely impede the widest dissemination of their work. Authors who retained copyright would be able to do anything with the article they wish from using it again in any form to putting it on their own web site to authorizing copying, controlling other subsidiary rights and collecting the fees themselves. But there is little value in retaining rights that can't be practically exercised. Additionally, it is evident from this review of contracts that almost all journals and publishers demand copyright as a prerequisite to publishing the article. And it is evident from the correspondence with editors that authors do not refuse the transfer. Further, the wide variety of copyright transfer forms reviewed indicates that there is no discernible difference among the contracts by commercial publishers, presses, societies and associations. In fact, some of the larger commercial houses that print dozens of journals had rather generous author contracts, and some individual societies had rather penurious author contracts. The author benefits and limits were wildly diverse. Recommendations Is a practical recommendation for journal authors possible based on this review of existing contracts? The answer is a qualified yes. Some recommendations for an author-friendly model journal contract follow, beginning with some intangibles that could benefit authors. Transfer of copyright. Authors could retain copyright and give the publisher selected rights, predominately first publication. However, this legal approach will be unacceptable to nearly every journal publisher, and it will impede wide dissemination of the article. So the transfer of copyright seems both mandatory and practical. Author rights retained. A variety of permissions are possible. First is the right to use the article in any of the authors' future work. This right is offered in most existing contracts and should not be a bone of contention. Second is the right to make copies for the authors' classes and educational purposes generally, such as sending copies to colleagues. This right is seldom offered, but publishers should extend it as a courtesy knowing that doing so will not seriously impede their revenue. Third is the right to use the article 'internally' or in the authors' own institution. In this case, the authors' campus colleagues could use the article in classes or for research purposes. Again, granting such a right is unusual but would not greatly affect publisher revenues. Fourth is the right to post the article on the authors' web page. Although web posting is a highly controversial issue that most contracts deny, some do permit posting with first-page notice of copyright. This study's review of contracts supports the case for authors' web posting with prominent copyright notice and prohibition against copying.
|
 |
Home | Logout    
                   |
 |
||||||||||||||||||||||||||||
 |
|||||||||||||||||||||||||||||||||
Copyright
2006 by Text and Academic Authors Association. All rights reserved. Disclaimer
How to Contact TAA | Site
Index
Design by Tammy
Seidick