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Roger Clarke's 'The Author's Rights in a Chapter'

Dancing with Wolves:
How to Negotiate for a Fair Deal for Academic Authors

Version of 18 December 2009

Roger Clarke **

© Xamax Consultancy Pty Ltd, 2009

Available under an AEShareNet Free
for Education licence or a Creative Commons 'Some
Rights Reserved' licence.

This document is at http://www.rogerclarke.com/EC/IGIC-0912.html


Abstract

Following the efforts of the open access and repositories movements, many (but not all) refereed journals have reasonable copyright terms. Publishers of academic books have been subject to less direct pressure, and in at least some instances the copyright terms they try to dictate are highly unfair to authors, and should not be accepted. This document summarises the interactions between a chapter-author and one such book-publisher, which culminated in a fair deal for the author.


Contents


1. Background

I was approached by the (academic) editor of a forthcoming book, and over 18 months a chapter was developed and agreed.

Only at the end was I told that I had to assign copyright to the publisher, IGI.

I examined the documents that were sent to me:


2. Declaration of Unacceptability

I wrote to IGI as follows:

As I understand your company's standard arrangements:

  1. you demand assignment of copyright
  2. you provide no copyright licence back to the author
  3. you publish 'guidelines' containing a 'policy', but this provides the author with no legal rights
  4. you retain the right to decline a request

It's preferable from the author's viewpoint that the author retain copyright in their work, and grant a substantial copyright licence to the publisher.

If copyright is to be assigned across from the author to a publisher, then a substantial copyright licence needs to be granted by the publisher to the author, as a condition of the assignment.

The elements of the copyright licence that the author needs are as follows ... (see Appendix 1 to this document).

A large proportion of journals address the author's needs, as described above. (To date, I haven't studied the conditions set by book publishers).

As regards the revenue effects of these licence terms, it appears that:

  1. publishers' sales channels continue to survive and even flourish, despite (or even in part because of) open repositories;
  2. many readers want the original, including the official pagination;
  3. any lost revenue arising from access to open copies rather than to the publisher's version is at least made up for by the promotional effect of the hotlinks on authors' copies.

IGI's standard arrangements fall a long way short of what authors need.

The analysis underlying these requirements is laid out in the published papers listed below.

Yours etc. ... Roger Clarke

[I also provided a list of Papers on Copyright Licences and Refereed Papers.]

[I also said that some publishers have had reasonable terms in place for some years, and drew attention to a couple of case studies.]


3. IGI's Response

Over a period of several months, the IGI editor stone-walled.

It's possible that she was unable to comprehend the argument. However, it's more reasonable to presume that she had no answer, and knew that the project was in time-trouble if she passed the communication up the line or to the company's lawyers.


4. Re-Writing of the IGI Assignment Form

Feeling some degree of moral obligation to the (academic) editor, I decided to offer a log-jam breaker.

I spent an hour amending the IGI copyright assignment form, primarily to add in a licence back to the author, but secondarily to fix some other unreasonable terms. (IANAL, but I have some idea what I'm doing, and anyway such documents are extremely rarely the subject of litigation, so fine points of law and legal drafting are unlikely to matter).

I sent to IGI the attached documents:

The editor asked for one change. (The licence I wrote permitted republication of the chapter in any later collection without a publisher right of veto, subject to some conditions of course. The editor asked for that to be limited to collections edited by the author).

I explained why that was a lot less than is appropriate, but I accepted it.


5. Conclusions

It takes effort to negotiate.

It helps to have a strong negotiating position. That comprised:

  1. the issues being engaged quite late in the process, with the publisher's editor having a lot of time invested in the book and facing a lot of work to drop the chapter, and
  2. the author not being all that worried about whether the chapter was published or not. (It was a minor further development of an earlier refereed conference paper, I'm too old to be subject to 'publish or perish', I'm only a 'hobby academic', and anyway I publish lots - 9 refereed papers this year).

A precedent has been established.

The precedent can be leveraged off by any author.

One more small step has been taken in the battle for open access.


Appendix 1: Elements of a Copyright Licence Needed by Authors
(1) PrePrints (i.e. earlier versions of the paper)

The author needs the right to leave any PrePrints in any and all of:

As a condition, the publisher may reasonably require the author to link closely-related PrePrints forward to the Publisher's Copy.

(2) The PostPrint (i.e. the version submitted to the publisher)

The author needs the right to self-deposit the PostPrint into any and all of:

As conditions, the publisher may reasonably require the author to:

(3) Copying

The author needs the right to permit any PrePrints and the PostPrint to be copied by any party.

As a condition, the publisher may reasonably require the author to place constraints on copying, such as limited numbers made by any one person, and no commercial use.

(4) Republication

The author needs the right to permit the PostPrint (or derivatives) to be republished by any party in a subsequent collection, without any right of veto on the part of the original publisher.

As conditions, the publisher may reasonably require constraints, such as:


References

(The three marked in bolf-faced type are the most directly relevant)

Clarke R. (2003) 'Copyright: The Spectrum of Content Licensing' Resource on Open Source Licensing and Open Source and Open Content as Models for e-Business, 2 July 2003, at http://www.rogerclarke.com/EC/CCLic.html

Clarke R. (2005) 'Revenue Models for Journal-Publishing in the Open Access Era' Xamax Consultancy Pty Ltd, April 2005, at http://www.rogerclarke.com/EC/JP-RM.html

Clarke R. (2005) 'A Proposal for an Open Content Licence for Research Paper (Pr)ePrints' First Monday 10, 8 (August 2005), at http://www.firstmonday.org/issues/issue10_8/clarke/index.html

Clarke R. (2005) 'A Standard Copyright Licence for PostPrints' Xamax Consultancy Pty Ltd, September 2005, at http://www.rogerclarke.com/EC/PostPrLic.html

Clarke R. (2007) 'The Cost-Profiles of Alternative Approaches to Journal-Publishing' First Monday 12, 12 (December 2007), at http://www.uic.edu/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/2048/1906

Clarke R. & Kingsley D.A. (2008) 'ePublishing's Impacts on Journals and Journal Articles' J. of Internet Commerce 7, 1 (March 2008) 120-151, PrePrint at http://www.rogerclarke.com/EC/ePublAc.html

Clarke R. (2008) 'Innovation and the Future of Journals in the Digital Era' Invited Presentation, Open Access and Research Conference (OAR 2008), QUT, Brisbane, 26 September 2008, at http://www.rogerclarke.com/II/OAR08.html

Clarke R. & Kingsley D.A. (2009) 'Open Access to Journal Content as a Case Study in Unlocking IP' SCRIPTed 6, 2 (August 2009), at http://www.law.ed.ac.uk/ahrc/script-ed/vol6-2/clarke.pdf, PrePrint at http://www.rogerclarke.com/II/OAJC-0904.html


Author Affiliations

Roger Clarke is Principal of Xamax Consultancy Pty Ltd, Canberra. He is also a Visiting Professor in the Cyberspace Law & Policy Centre at the University of N.S.W., and a Visiting Professor in the Department of Computer Science at the Australian National University.



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Created: 18 December 2009 - Last Amended: 18 December 2009 by Roger Clarke - Site Last Verified: 15 February 2009
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