From: Kevin Smith <[log in to unmask]>
Date: Tue, 22 May 2012 00:51:59 +0000

I actually didn't think I was saying anything very controversial, but
perhaps I was naive.

It is also naive, or disingenuous, to suggest that authors can just
"choose another publisher" if they don't like a contract. Academic
authors do not choose publishers, they choose journals.  They may
select the journal they want to publish in based on its disciplinary
niche and impact, but never, at least in the journal world, because of
which conglomerate publishes it (except, as in the case of the
Elsevier boycott, negatively). And their choices are usually severely
limited, especially if they work in a specialized field.

I certainly do believe that there would be fewer enforcement actions
over plagiarism/infringement if only the author's wishes, and not also
a publisher's desire to protect a profit, were involved, but there
would certainly be some.  And publishers could still send cease and
desist letters, even as non-exclusive licensees, as Mr. Watkinson
acknowledges.

It is worth remembering that copyright is not an all-or-nothing
proposition, but an infinitely divisible bundle of rights.  A
well-drafted license could certainly apportion rights in a way that
allowed for appropriate enforcement when mutually agreeable, as well
as for downstream licensing and permissions.

Kevin L. Smith, J.D.
Director of Scholarly Communication
Duke University
Perkins Library
Durham, NC 27708


On May 21, 2012, at 6:56 PM, "LIBLICENSE" <[log in to unmask]> wrote:

> From: Anthony Watkinson <[log in to unmask]>
> Date: Fri, 18 May 2012 12:51:27 +0100
>
> I am puzzled by some of Kevin's statements. All publishers reading this list
> will know of many times when they are alerted to plagiarism by the author of
> an article and are expected to take action. I hope he is not claiming that
> the emotive anecdote is representative of author attitudes - though he seems
> to suggest it is.
>
> Publishers will also know that they are very very unlikely to sue (this is
> very much the last resort) but do get retractions or suchlike by pressure -
> which is what the authors want. It takes up a lot of time. Note that I am
> not saying that they need copyright to do this.
>
> There are all sorts of reasons why publishers need copyright or exclusive
> rights. One obvious one is they are asked to undertake that this is their
> relationship with the authors in downstream contracts with aggregators (for
> example).
>
> I assume Elsevier is being picked on because they make a lot of money and
> are the scapegoat but I would be interested to know how what they do in
> relation to asking for copyright is different from what learned society
> publishers (owned by academics) do when they ask for copyright or exclusive
> rights. As an academic author I do not feel I am involved in a tug of war. I
> can just ignore mandates. I can just choose a different publisher. I am sure
> I am not the only one.
>
> Anthony
>
> -----Original Message-----
> From: Kevin Smith <[log in to unmask]>
> Date: Thu, 17 May 2012 10:40:07 +0000
>
> Sandy makes some valid and important points.  In the interests of
> continuing a valuable conversation, let me reply to each.
>
> 1). It is true that if authors gave publishers only a non-exclusive
> license, authors would have to enforce the copyright.  To know how
> much of a burden that would be, we would need to know how often
> publishers actually do sue to protect the integrity of a work, rather
> than its profitability.  Authors, of course, would not have the same
> need to litigate to preserve a revenue stream, so I imagine that this
> burden would actually be very light.
>
> To illustrate how unlikely it is for an author to confront a situation
> in which she cares enough to sue, I offer an anecdote about the worst
> case of plagiarism/infringement I have seen.  A graduate student in a
> specialized scientific sub-discipline discovered that an article he
> had written and published in a leading journal in that field had been
> entirely reprinted under the name of a different scholar in an obscure
> journal published in that second scholar's developing and strife-torn
> country.  As I began to lay out his options, he stopped me and told me
> that he did not want to do anything about it, because he had gotten
> the credit he needed for his CV and the other scholar was just trying
> to make her career, he believed, in circumstances more difficult than
> he could imagine.  I was dumbfounded, and had to convince him that he
> really must at least notify the publisher, who held the copyright by
> his assignment.
>
> 2). Sandy is again spot on in noting that a publication agreement
> cannot create ownership of rights in a third party.  But if we are
> talking about a non-exclusive license situation, this would be
> unnecessary anyway.  The author would be free to grant another license
> to the institution or funding body.
>
> Where the copyright is transferred to the publisher, Bernard's
> suggestion is more applicable.  All I think he is really asking is for
> publishers to recognize prior obligations that authors have taken on,
> including campus OA policies.  The current situation puts author is
> the middle of a tug of war that they did not create.  This is
> especially true of Elsevier's attempt to penalize institutions that
> adopt OA policies by making life more difficult for faculty authors at
> those institutions.  Such attempts to meddle with institutional
> policies are an unwarranted interference with academic freedom, and
> all we really need to ask is for publishers to stop trying to dictate
> campus policies that arise prior to any transfer of copyright to those
> publishers.
>
> 3). When a large commercial publisher reports profits of between 35
> and 40%, I think there is room for a moratorium on price increases, at
> least with the largest publishers, without the need to slow whatever
> expansion is truly needed.
>
> 4). I think I should stay out of a debate about excellence, since it
> is a matter for the scholars to decide.  If we could subscribe title
> by title, of course, those scholars would tell us what journals are
> not valued by not using them or objecting if their libraries cancelled
> them.  So perhaps all we need when we have to bundle journals is good,
> granular usage statistics and the freedom to cancel titles without
> penalty.  Over time, that might give the publisher a good idea of
> which journals are not valued by the academic community, which is the
> opinion that matters.
>
> Kevin L. Smith, J.D.
> Director of Scholarly Communication
> Duke University
> Perkins Library
> Durham, NC 27708