Writer's Resources

Journal Authors:
intellectual property landlords - or migrant workers?

by Dan Carlinsky
former ASJA Vice President/Contracts

For the past several years, professional freelance writers have been negotiating, litigating, and sometimes climbing the barricades to protect our rights and the income they produce. But writers write for different reasons. So we who write to earn our daily bread understand why our cousins the academic and scientific authors haven't been quick to join us in our current campaign. Writers of the scholarly persuasion generally have other things on their minds.

But now, in the Internet Age, the ground is shifting. Some in the Academy are starting to think a little more as we do about authors' property rights. Scholars have begun to consider seriously whether they should simply be giving away copyright in journal articles to their publishers. The Association of American Universities, the American Academy of Arts and Sciences, Cal Tech, the University of Kansas, Yale, and such publications as Science and The Chronicle of Higher Education have all entered into the discussion. We're happy for the company.

Under U.S. law, copyright in a work begins the moment the work is "fixed in any tangible medium of expression." Independent authors - those not in the employ of the publisher - are property owners who can choose to rent their property, license its publication, or sign it over to their publishers entirely. Most journals demand to own what they publish.

Consumer magazines that deal with professional freelance writers don't often try to go that far, but journal authors are considered easy marks. Most don't think twice about the demand. After all, they are going to be published, and that, for a variety of reasons, is what they're after.

But since the law says authors are the landlords of their intellectual property, why should they let themselves be turned into migrant workers?

Signing over copyright to a publisher has two effects: (1) It restricts authors. They can't reproduce their own work, because the right to copy - copyright - now belongs to another. (2) It frees the publisher. The journal that has the copyright can do anything at all with an author's work, as often as it wants, in any form, forever - without asking or telling the author, and without paying a dime.

Until recently, neither 1 nor 2 seemed to matter to scholars. There wasn't much they would do with an article on their own anyway, except perhaps run off a few reprints. As for the publisher's permanent lock on the article, most articles were published one time and that was that; other than reprint income, there wasn't much aftermarket or, in general, much to squabble over.

In the late nineties, there's plenty to squabble over. And more to come.

Scientists may want to post their findings on their own Web sites; do they want to be told they can't do that with the product of their own sweat and brains? And with all the new ways journal publishers can now profit from the articles they publish, should scientists be content to let a publisher take in money forever from what was once their property . . . until they gave it away? In my view, no.

If the journal will grant an author reprint privileges, that fixes only part of the problem. Authors also ought to consider whether, how extensively, and for how long the publisher makes money from an article.

In any copyright discussion, scholars' first concern is freedom to distribute their results and their opinions. But even for scholars, dollars also ought to enter into the figuring. Because the dollars are increasing, sometimes wildly.

University librarians, journals' main paying customers, have grown painfully accustomed to annual subscription hikes of double-digit percentages. For some must-have journals, the yearly tab runs to four or five figures. When they buy journals containing papers by their own faculty, universities pay for research coming and going.

But a lot more than subscription revenue is at stake. There's increasing income from photocopy licenses and from online databases, which allow journals to extend the shelf life of articles by, in effect, selling electronic reprints from a virtual inventory forever. Publishers pocket regular royalties from database compilers; especially for scientific and other heavily researched publications, the payout can be beefy.

With ever fewer exceptions, academic journals are no longer fragile labors of commitment, subsidized by nonprofit societies or squeaked out in the back rooms of university departments. Furthering a trend begun in the 1960s, when commercial group publishers began acquiring journals and launching competition for others, and bolstered by mergers, acquisitions, and an ability to slide through the antitrust net, a handful of international media mammoths now rule the journal world. The largest publish journals by the hundreds. Their audience may be scientists and professors, but they do not talk to their shareholders about knowledge and truth. They talk about billions of dollars.

I believe that once academics learn about the money involved, many will be less casual about giving up their rights in order to get their work published.

Some publishers argue that the value they add to their authors' raw manuscripts justifies their taking the whole pie. It's true: refereeing and editing, when extensive, are real contributions. A publisher's brand can supply status. In the case of certain advanced online publications, which supplement an article with backup, links, and other valuable extras, the publisher in effect becomes a coauthor. Any of these might justify giving the publisher a share in the articles it nurtures and publishes. But not the whole thing.

Some publishers contend that they need authors' copyrights simply to do their business. But if both parties are willing, authors can keep their copyright and give the publisher a specific license to publish. Go back to number 1 above: If a publisher needs to stop an author from interfering with business, reasonable restraints can be negotiated into a license; the author need not relinquish ownership. And for number 2, the license can allow the publisher selected secondary activities, such as print anthology, time-limited Web posting, sublicensing to database compilers, but with a share of earnings going to the author.

I've heard it argued that because publishers will do a better job of getting exposure for an authors' writing, authors shouldn't mind giving them ownership. That's too much of a leap. A good real estate broker is better at selling houses than I am, but if I wanted to sell my house, would I give it to a broker? Or would I arrange with a broker to handle the sale in exchange for a piece of the action? After all, it's my house.

Commercial publishers make money from others' research and writing. That's capitalism, and that's fine - to a point. Each party gains something from the arrangement: the author, exposure for the ideas or fulfillment of an obligation for a grant or credit towards tenure; the publisher, dollars. But in the new world of journals, the publisher's gain is increasing - both in immediate dollars and in positioning for the future - while the author's remains constant. Circumstances vary, but sooner or later the imbalance can make the deal foolish for the author. For many, "sooner" is already here. Keep an eye out. Think about it.

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Watch your back!

As the copyright issue spreads, authors who aren't used to contracts will have to learn to read them, and to beware of sleight-of-hand. Not long ago, a senior editor of an online chemistry journal bragged that his publication asks not for a copyright transfer, but rather for a license to publish. I was impressed - until I read the agreement. Sure enough, there it was, in clause 1.2: The author "shall at all times retain ownership of all rights, title and interest in and to the Work." But at the same time, the contract gave the publication an exclusive license to publish in any media for the life of the copyright - a license so broad that the "ownership" that remains with the author is an empty shell.

Knowledge and truth? Scientific publishing is business, and it's a jungle. Authors need to read the fine print.