Against the Grain / June 2008 67 print server, their Institutional Repository or either directly or through aggregators like From the University Presses a personal Website (though sometimes not for Project Muse. If the practice of posting the from page 67 the weekly news-oriented science or medical archival versions were to become widespread magazines, for public health and similar rea- in institutional repositories, it would not make to facilitate the whole peer-review process, sons).” STM has also issued a set of guidelines any rational economic sense for libraries to thereby vastly increasing the efficiencies with for best practices in the reuse of quotations and maintain subscriptions because search engines which both the faculty who edit the journals other materials that has been endorsed so far could locate any given article on those reposi- and the publishing staff who oversee produc- by twelve publishers, including the American tory sites or on the sites of discipline-oriented tion do their respective jobs. There is also Chemical Society, Elsevier, Institute of organizations that might harvest the metadata no recognition here of other value added by Physics, John Wiley & Sons, Oxford Univer- from the institutional repositories to provide publishers, such as the use of XML coding to sity Press, Sage Publications, Springer, and one-stop shopping for their constituents. For allow repurposing of the content (essential, Taylor & Francis. These guidelines allow for Penn State, the undermining of Project Muse for example, if access to articles is ever to reproduction of two figures (including tables) would be disastrous as two- thirds of our rev- happen through hand-held devices like eBook from a journal article or five figures per journal enue for our journals operation comes from this readers and mobile phones) and the addition volume (unless a separate copyright notice source now and all but our few society-owned of digital object identifiers (DOIs) to permit identifies a third party as copyright owner) and membership-based journals could not cross-linking between citations and sources and use of single text extracts of less than 100 survive without this income. through CrossRef. All of this costs money and words or series of text extracts totaling less The Assumption Is That “One Size Fits can easily be seen to have contributed to the than 300 words for quotation, in all media All” increase in journal prices at a rate greater than and future editions, without the need to seek One problem with many of the proposed inflation. Not mentioned byTanner , or indeed any permission, so long as the reproduction is in any of the other places where background addenda is that they do not distinguish between for “scholarly comment or non-commercial STM and other types of journals. The rationale on the STM crisis is provided, as contributing research or educational use.” to higher than inflationary subscription prices for the author’s addendum is clearly based on Anyone can consult the SHERPA/Ro- the alleged serials crisis in STM publishing, is the sheer growth in the volume of research meo site (http://www.sherpa.ac.uk/romeo. published, which has meant either adding more but the application of the addendum is not php?all=yes) to verify, to the extent that the restricted in any way to the STM arena. It is issues to journals or increasing their length. information on this site is up-to-date and rea- The percentages of price increases are never proposed, in fact, as a “one size fits all” solu- sonably comprehensive, whether the claims in tion. The MIT addendum provides for posting given in terms related to the rate of increase in the STM statement are true for the vast majority number of pages published, which is less driven of the “final published version” immediately of publishers now. It would behoove those or- upon publication of the article in the journal. by publishers’ desire to publish more than it is ganizations promoting the author’s addendum by faculty’s need to publish more. This is not The SPARC version goes one step farther to conduct this kind of review, otherwise their in requiring the publisher to give the author, to argue that all criticism of subscription price claims will be overreaching and not reflect hikes is unwarranted, but it is to say that much within fourteen days after publication, an current reality. Some sites have not even been electronic version of the article (such as a PDF) of the criticism does not identify the full range updated in quite a while. ACRL’s Scholarly of factors explaining the increases. that preserves “final page layout, formatting, Communication Toolkit, for instance, gives and content.” The new Harvard addendum Characterizations of Publisher Practices January 4, 2006, as the last date on which it was adopts this provision also. The CIC agreement Are Outdated or Misleading revised. (It does not, therefore, even acknowl- does grant a delay of six months, but insists The same may be said of the characteriza- edge the existence of the AAUP Statement on that the “final published version” must be made tions of publisher practices, which tend to Open Access, which was issued in February available for multiple reuses thereafter. A delay portray publishing contracts as denying authors 2007.) Scholars themselves would be properly of six months would be problematic even for practically any reuse rights at all, even for their criticized if they made assertions based on many journals in science; for journals in the own teaching and research. If there have ever such outdated information. Organizations that humanities and social sciences, it would hardly been contracts or policies so completely one- claim to represent their interests should hold suffice to keep them in existence. The research sided, I do not know about them, and I doubt themselves to the same standards. published in these journals is very rarely so that any examples exist in university press Where the addenda diverge most crucially time-sensitive that a delay of six months in publishing. Our standard journal contract at from the policies that most publishers follow having access to it would much damage the Penn State has long included language making is the version of the article that is allowed to advancement of scholarship in these fields. clear that authors have the right to reuse their be reused. No one seems to have a problem These journals generally cost only a fraction articles, after publication, in any future works with the author’s use of preprints for teaching of what STM journals cost, so perhaps some of of their own without charge. And when authors and research and for posting to Websites, both the largest research universities would still feel began to ask about posting their peer-reviewed personal and institutional. A great many pub- obliged to continue their subscriptions. As the articles on personal Websites and institutional lishers also permit such reuse for the article as vast majority of other libraries would likely be repositories, we obliged by allowing them to revised after peer review. But many publishers content to have access to these journals after do so. Other university presses have similar draw the line at allowing reuse of the article in six months, either the big universities would policies, as do many commercial and society its final published form, although some permit need to pay a lot more to keep the journals in publishers. Significantly, on March 10, 2008, its use for the author’s own immediate teaching existence, or the journals would have no choice the International Association of Scientific, and research purposes and for internal use at the but to adopt some kind of open-access business Technical & Medical Publishers issued a author’s university. Most do not permit posting model if they wanted to stay alive. In the short Statement on Journal Publishing Agreements of the final published version on publicly acces- term, in negotiating such addenda, I predict and Copyright Agreement “Addenda” (http:// sible Websites, however, immediately or even that many publishers will either strike out the www.stm-assoc.org/documents-statements- after some delay. The NIH policy itself does clause demanding the right to immediate or public-co) to make clear that “authors already not mandate posting of the final published ver- delayed posting of the archival version or else have many of the rights sought in copyright sion, and in any event does not require posting charge a fee to make those articles available addenda.” To be specific, “standard journal of any version before a delay of twelve months. open access, thus adopting a hybrid model agreements typically allow authors: to use The reason most publishers resist posting of for their journals. The latter approach would their published paper in their own teaching the archival version is very simple: unless result in exchanging one kind of problem for and generally within their institution for they publish on an open-access model, they authors for another, as they would then need to educational purposes; to send copies to their have an investment in the final processing of locate a source of funding to pay the fees. Is research colleagues; to reuse portions of their an article to protect, which provides sufficient this a result the organizations sponsoring these paper in further works or book chapters; and incentive — so publishers believe — for librar- addenda even contemplated? I suspect not, as to post some version of the paper on a pre- ies to continue subscribing to their journals, continued on page 69 68 Against the Grain / June 2008 From the University Presses from page 68 there is no mention of this possibility anywhere The Journals in the information on their Websites. Nonexclusive Rights Are Insufficient for of The endocrine society Publishers to Protect Their Investments World leaders in diabetes, endocrinology, & metabolism Several of the proposals, including the one put forward by the University of California, suggest that publishers only really need non- Renew Now or Begin Your Free Trial! exclusive rights to conduct their business. One s Free Trial Offer for New Institutional Subscribers—Get 4 months of free online of the two alternative addenda recommended access to any of our four journals. offer expires June 30, 2008. available to new by the University of Pennsylvania (borrowing institutional subscribers and qualified former institutional subscribers. the formulation of Harvard’s Stuart Shieber), for instance, grants the publisher only a non- s Two-for-One Offer for Institutional Subscribers—Purchase a 1-year institutional exclusive license to publish the article and subscription to Endocrinology or Molecular Endocrinology and receive a 1-year reserves for the author “all other proprietary subscription to the other research journal for one bundled, discounted price. rights including copyright and patent rights.” s Tailor-Made Pricing for Institutional Subscribers—starting in 2008, subscription But under U.S. copyright law the holder of a prices for institutional and multi-site subscribers will be based on the type of nonexclusive right has no standing to sue for organization (tiered pricing). infringement. This proposal, therefore, asks publishers to sacrifice any ability to protect the For more information about these offers or a tailor-made price quote, contact investment they make in publishing articles. [email protected]. The copyright that the publisher owns in the journal as a “collective work” does not suffice The Journal of Clinical Endocrinology & Metabolism— to give publishers the leverage they need to The Must-read Clinical Journal in the Field combat piracy, which is a profound problem In-depth coverage of the latest developments in diabetes internationally. Without some kind of exclu- and obesity, pituitary, adrenal, and thyroid disorders; sive right in the articles themselves, a publisher metabolic bone disease; pediatric endocrinology; and could not prevent, for instance, a competing other key areas of endocrinology and metabolism. publisher from selecting articles to republish in another collective work, whether another Endocrine Reviews—an In-depth, enduring journal or an anthology. Authors themselves resource With the highest Impact Factor would have no incentive to oppose such addi- in endocrinology and Metabolism tional distribution of their articles; indeed, they In-depth reviews on clinical and research topics in would likely benefit from the greater exposure. endocrinology and related areas, including diabetes, Turning over just nonexclusive rights to their thyroid, pediatric endocrinology, growth factor, and publishers, then, would leave the publishers reproductive medicine. defenseless against all kinds of theft that would undermine their business. Endocrinology—The endocrine research authority 6,000 pages annually of the highest quality original work, covering subcellular mechanisms Most of the addenda, it is comforting to to whole animal physiology, with topics including calcium regulation, growth factors, energy report, do acknowledge the need to grant pub- balance-obesity, diabetes, steroids, renal cardiovascular, development, cancer, lishers exclusive rights, if not the entire copy- right, and they phrase the retention of rights neuroendocrinology and signal transduction, and physiology. by the authors in terms of nonexclusive rights. Molecular Endocrinology—on the Cutting edge of endocrine research Under this arrangement, both authors and their Original mechanistic studies examining the actions of hormones and related substances on the publishers can, for example, give permission molecular biology, structural biology, and genetic regulation of gene expression, using the techniques for reproduction of articles in coursepacks and methods of molecular research, recombinant DNA, protein structure, and membrane structure. and charge for it, or not, as they wish. The SPARC addendum is defective in this respect, however, as it refers just to “rights” retained subscribe online at by the author, without specifying whether they are exclusive or nonexclusive. The distinction www.endojournals.org is crucially important because, for instance, if the “right to prepare derivative works from the article” is exclusive to the author, the pub- lisher would be denied a considerable range of Publisher’s assent to the terms of this Ad- tive of the publisher. Changes made to the business opportunities, including the right to dendum.” The Harvard addendum contains agreement after it has been signed by the authorize translations. similar language. This kind of language is publisher must be approved by the publisher. noticeably absent from some other such ad- Otherwise, there is no ‘meeting of the minds,’ The Opt-Out Approach Is Problematic denda, however, such as the CIC addendum and therefore, no valid agreement. Be sure to Another difference between the addenda or the UNC addendum. Usually, contracts get approval from the publisher to any such is language to the effect that if the publisher have to be signed to be legally binding, or changes in writing” (http://www.copyright. does not sign the addendum but goes ahead at a minimum there has to be proof that a iupui.edu/nego_doc.htm). It is unclear what and publishes the article, the mere publication “meeting of the minds” occurred. This is the the legal status of such an opt-out provision is. itself will constitute acceptance of the terms of implication I read into the advice Kenneth If an author were to take a publisher to court the addendum. The SPARC version contains Crews gives on Indiana’s Website: “Be sure over such an addendum, would not the author this language in clause seven: “However, if to obtain confirmation that your amendments be obliged at the very least to provide proof that Publisher publishes the Article in the journal to the agreement are received and accepted. the addendum actually was sent and received or in any other form without signing a copy Many times, publisher agreements are sent by the publisher, for example, by a receipt of this Addendum, such publication manifests to the creator already signed by a representa- continued on page 70
Against the Grain / June 2008 69 From the University Presses The Digital Gap between Books and Jour- worse. So, while benefiting authors of journal nals Will Widen Further articles by encouraging or requiring adoption of from page 69 Apart from specific criticisms of the ad- the author’s addendum, universities will inevi- denda as written, and questions about their tably be harming authors of monographs. This from a certified or registered mail delivery? A rationale as inaccurately reflecting current is yet another instance of the common practice publisher surely cannot be held to have given practices in the publishing industry, I have three in universities of robbing Peter to pay Paul: the even implied consent to an addendum without other reservations that relate to the systemic overall costs in the system do not change, they having seen it! repercussions of adoption of the author’s ad- merely get shifted from one sector to another, Does the Addendum Apply Just to Jour- dendum. Although the CIC addendum incor- or from one set of universities to another. nals or to Edited Books Also? porates at least edited volumes within its scope, Presses, to continue publishing monographs, the general thrust of the effort is to widen the will require even greater subsidies if they are One final difference is that some of the ad- to continue providing this service to schol- denda restrict their application to use of articles digital divide still further between journals and books. Apparently because they believe arly communication, and as a result that small published in journals or, at most, conference handful of universities that support presses proceedings, whereas others extend the appli- authors have some greater financial stake in their books than they do in their articles, the will bear an even heavier burden of financial cation to chapters in edited volumes. Thus the responsibility to keep the system operating. Is CIC addendum explicitly refers to articles as proponents of the author’s addendum do not attempt to encourage authors to renegotiate this shifting of resources sensible? Is it fair to they appear in a “Journal, Anthology, or Col- increase “free riding” even further? Has any lection.” Most other addenda either refer only their book contracts with the aim of carving out a large swath of reserved rights. It is already administrator even thought about the repercus- to articles in journals or else are ambiguous, as sions of centralizing costs more while benefits is Harvard’s new policy. true that vastly more content from journals is available electronically than from books, via are dispersed ever widely? Is the Distinction between Commercial open access or otherwise, and the effect of the Presses Will Have Increased Costs in and Noncommercial Use Viable? author’s addendum will be to widen this gap Negotiating Contracts Besides their differences, the addenda do even more. There is, of course, no intellectual A third systemic effect will be to increase all share the approach that distinguishes, in justification for carving up the terrain of schol- the burden on the staff of university presses one way or another, commercial from noncom- arship in this way, and it is a huge disservice to who will need to spend more time negotiating mercial use, perhaps following the lead here authors of books, and to those areas of scholar- changes in contracts and setting up systems for of Creative Commons, whose most popular ship where books play a predominant role in a tracking variations across contracts that can af- license relies on just this distinction. It is puz- way they do not in science, that their writing fect how various subsidiary rights are handled. zling, however, that so much weight should be in books should be so limited in accessibility Presses use contracts with standard language placed on this distinction, partly because Larry compared with their writing in journals. Uni- approved, usually, by university attorneys or Lessig, the progenitor of Creative Commons, versities, however, seem either not to be both- outside counsel, and the use of such contracts himself repudiated the validity of the distinc- ered by this growing gap or else just stymied helps a press operate efficiently. As presses are tion in his 2001 book, The Future of Ideas. in what to do about it. For university presses confronted with more requests to consider ad- Lessig, commenting on Jessica Litman’s sug- at least, the financial rationale for the gap is denda, and as these addenda themselves differ gestion for “recasting copyright as an exclusive not based on fact. I can cite many examples in terminology and scope, each contract will right of commercial exploitation,” avers that, of journal articles published by our press that end up needing to be negotiated individually while an idea worth exploring, it rests on shaky have earned their authors vastly more income and, in some instances no doubt, legally vetted ground because “the Net itself has now erased from licensing reuse than the author of a typi- and approved by counsel. (Ironically, the same any effective distinction between commercial cal monograph ever realizes from royalties (if, lawyers who were consulted by universities to and noncommercial” (p. 258). One can only indeed, royalties are offered at all). create the addendum may be asked by presses wonder why Lessig allowed this question- Presses Will Be Denied Revenue and Need to consider how much of the addendum can be able distinction to be built into the Creative More Financial Support accommodated, placing them in an interesting Commons license. It indeed “rests on shaky A second systemic effect of the author’s conflict-of-interest position.) Once the changes ground.” Consider, for instance, whether the addendum, if it were to be accepted by publish- are made, they will need to be recorded in a author’s right to reuse an article in research ers without further amendment, is to curtail an database that will have to be consulted every allows sharing it with an employee of a for- important stream of revenue that now supports time the press is approached with a request for profit corporation, let’s say, Texaco. We all scholarly publishing. Once articles are posted permission or sale of a subsidiary right. The remember that a judge ruled that, even though for public access online, and when authors increased costs entailed for presses in coping the researchers at Texaco were photocopying themselves reserve rights to grant permission with this extra complexity will need to be articles for their use in research, the ultimate for secondary uses (as in coursepacks), the mar- covered either by increases in the prices for use was for “commercial” purposes. Or what ket for such uses is likely to decrease markedly, the press’s publications or by additional sup- about an author who wants to allow a university if not disappear altogether (as teachers, for ex- port from the parent university. As one press press to include an article in an anthology. Is ample, can simply point their students to URLs director wryly observed, “Oddly, the very folks this “commercial” even though the press is for articles). Income from subsidiary rights who are complaining loudest about the costs of nonprofit and its mission is educational? Does now helps support journals, and the surplus journals think they can somehow lower those it make a difference whether the anthology that journals often provide to their publishers costs by making publishers sink a lot more turns a “profit” or whether the volume’s editor in turn helps support publication of scholarly time and money into the rights and permissions receives any royalties? Also remember that monographs, very few of which ever succeed in process. Someone has to pay for that time. The five of the thirteen judges who ruled in the covering their costs. Depriving presses of this complainers will be very sure it shouldn’t be MDS case felt the photocopying done by a income, therefore, can only exacerbate further them. But inevitably it will be them.” commercial copyshop to be “fair use” because the plight of monograph publishing, forcing Are Presses Part of the Problem the ultimate use of the copied materials was presses to rely even more than they do now on for educational purposes. So, evidently, even estimates of sales potential in making decisions or Part of the Solution? judges can be confused about where to draw about what books to accept. ACRL’s Toolkit I note, with some irony here, the closing the line between commercial and noncom- notes that “fewer specialized monographs are paragraph of the CIC provosts’ statement: “The mercial uses. The distinction, I fear, is about being published” as a result of the drain on CIC Provosts recognize the complexity of the as difficult to define as it is to decide whether library budgets to pay for costly STM journals issues involved in publication, but are nonethe- any given use of a work is “fair.” This does offered in the “big deals,” but it shows no less committed to helping our faculty make the not augur well for clarity in the application of awareness of the probable effect of reserving most of their work. For further discussion of the author’s addendum. rights to authors in making this problem even continued on page 71
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From the University Presses Is the Author’s Addendum versus noncommercial use, (7) troubling to the a Solution to a Problem degree that it fosters an even greater digital from page 70 divide between book and journal content, and or Just Another Problem? (8) systemically reallocative because it will these issues, or for help in assessing options for To sum up, the author’s addendum is (1) undermine an important source of revenue for the publication of particular works, members misleading to the extent that it is based on supporting journal and monograph publishing of our faculty are encouraged to consult with an incomplete understanding of the causes by university presses, complicate the process academic deans, campus counsels, university of journal price inflation, (2) superfluous in of negotiating contracts with authors, and librarians, or academic staff in the provosts’ of- recommending reuses that are already allowed thereby increase the financial burden for the fices.” What about the publishers that exist on under most publishers’ policies, (3) too blunt an universities that currently support presses. Is every CIC campus? Admitting as they do that instrument for dealing with the many important this, then, really a solution to a problem or just publishing issues are complex, the provosts, differences that exist between publishing in the another problem? Surely, there must be a better one might have expected, would have advised sciences and publishing in the humanities and way of achieving the aims of wider distribu- faculty to consult the experts on campus who social sciences, (4) insufficient for protecting tion of scholarship, which is after all the basic know the most about publishing. Either the publishers’ investments to the extent that some mission of a university press, than to set up an provosts have little respect for the expertise of versions recommend giving publishers only antagonistic relationship between faculty and their own professional publishing staff, or they nonexclusive rights, (5) legally questionable university presses that will have to be mediated simply consider us as part of the problem rather insofar as it relies on an opt-out procedure for ultimately by university administrators and than part of the solution. One can hardly draw publishers’ acceptance, (6) confusing when it their lawyers. any other conclusion from such a conspicu- relies on unviable distinctions like commercial ous omission of press employees from this list of campus personnel who are qualified to advise faculty about publishing. Needless to improving, and maintaining the information we say, presses were not consulted about the CIC Rumors author’s addendum in its preparation, nor given publish on the Web under the Encyclopaedia from page 59 Britannica name as well as in sharing content any formal opportunity to comment on it after they create with other Britannica visitors. A its promulgation. We are presented with this complete redesign, editing tools, and incentive as a fait accompli and expected to adjust our Speaking of the Google effect, did you see programs will give expert contributors and users own business practices to it, however much that the venerable Encyclopaedia Britannica the means to take part in the further improvement accommodating it will cost us in extra expense is going wiki? It is “about to launch a new of Encyclopaedia Britannica and in the creation and reduced revenue, with no indication that initiative ... [t]he main thrust … [of which] is and publication of their own work.” Britannica our financial shortfalls will be offset by any to promote greater participation by both our further states: “Encyclopaedia Britannica will expert contributors and readers. Both groups continue to form the core base of knowledge increase in operating subsidy. will be invited to play a larger role in expanding, continued on page 85
Against the Grain / June 2008 71
