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 P.O. Box 90193 Durham, NC 27708 919-668-4451 Sent from my iPad On May 16, 2012, at 10:18 PM, "Sandy Thatcher" <[log in to unmask]> wrote: > I have no ax to grind in this matter, but would ask the following questions: > 1) If authors only give nonexclusive rights to publishers, publishers will then not have legal standing to sue for infringement, and it will be the individual author's responsibility to take action and pay all expenses pertaining thereto. Is that a burden authors wish to bear? (There are at least some kinds of infringement that authors need to be concerned about, to protect the integrity of their work.) > 2) What does "by default" mean? Copyright law defines the owner of copyright to be the author (or, in the case of a work made for hire, the employer). There can be no "default" giving any other parties joint ownership unless a specific written agreement is signed to that effect. > 3) If subscription costs are held flat for five years, does that mean that journals cannot expand in length over that period of time? (I understand that the increase in size of journals is one of the factors that has contributed to driving up subscription prices.) > 4) How is the "excellence" of a journal to be assessed? Are journals reviewed anywhere (except, occasionally, in the Times Higher Education Supplement)? Who is to tell a publisher which journals to drop? > Sandy Thatcher