Open Access Journals: The Publication Agreement Quandary

Open Access (OA) in scholarly publishing is slowly but surely gaining speed and acceptance in the academic community. For many, if not most, younger scientists and scholars, any other arrangement seems nonsensical). Traditionally though, publishers have held a complex role as editors, gatekeepers, disseminators, and custodians of the literature.

So when any postdoc or junior faculty member can pop something out on a blog like this one, what role do the journals play? Editing, peer review, and publishing can all be outsourced or completed with free and open web-based tools, making the prospect of paying journals on both ends for their services (in money and in copyrights) simultaneously less attractive and less necessary.  The world has changed to one of tearing down barriers and crowdsourcing--the gates are wide open.  Self-promotion on Twitter (ahem) connects the community in ways that were only fantasy just 10 years ago (realtime, public interaction from basically anywhere in the world with a cell signal? We're living in the future!).  What's left?



As it turns out, that custodian function is important. With the flood of material out there of questionable quality and overwhelming variety and sources, the name recognition factor of the journal, and the role of curator becomes critical.  Stellar services like arXiv have made preprints available for years, but they are typically only minimally screened, not peer reviewed.  OA journals like PLOS One and PeerJ bring in peer review and lend credibility to publications.  But even today, getting published in Nature or Science affords an author recognition and a sense of achievement, and while business models may change and the elite journals not embracing the OA wave may find themselves no longer on top, it's hard to imagine that there will come a time without an elite journal of record for a given field, marking major scientific breakthroughs and providing the biggest audiences.

What is changing is the nature of the arrangement with the publishers.  Right now, the contractual agreements with most journals are complex deals involving a dizzying array of rights and restrictions about use, exclusivity arrangements, and transfers of various copyright interests. As an added layer, university faculty have to navigate a maze of internal research policies and rights negotiated sometimes years earlier in funding agreements. Authors often find themselves on the wrong side of their own papers; some have been threatened with lawsuits for giving their own work to their own students.  Open Access journals like the aforementioned PLOS One and PeerJ, by contrast, overwhelming endorse the Creative Commons CC-BY license, making such a situation impossible.  The journals have only nonexclusive rights to the articles, just like everyone else on the planet.

To help usher in this new world order, some universities are embracing OA on their own; the University of California system now has an OA policy designed to ensure that research is made freely available and journal publishers can no longer unilaterally block it from happening. Under this policy, authors preemptively carve out the right to use their own works and to make versions freely available, regardless of the journal's expectations (journals can still negotiate temporary exclusivity embargoes or request an exception to this policy in their publication agreements).

Stuart Shieber at Harvard recently tackled the question of what OA publication agreements might or should look like.  However, his discussion skipped over three important questions.

(1) If the work is licensed CC-BY, why would you need a publication agreement in the first place?  

This one's easy.  You don't.  A journal can freely reprint a CC-BY article, with or without edits or revisions, with or without OA provisions, for anything posted CC-BY.  What this means for authors who want to require that any publications support OA is that they--somewhat counterintuitively--must not post their manuscripts online before completing a publication deal unless they want to take that risk.  Fortunately, most reputable journals do not publish without an author's permission, even though they have the legal right to do so.

(2)  If not needed, why would you want one?

For the author, to promote and protect OA principles and to have some degree of input into the published version.  For the journal, to get something more than what CC-BY offers, either in terms of usage rights (like temporary exclusivity) or in legal protections (like warranties of originality or non-infringement).

(3) Why would a journal be interested in printing an article anyone can already find online, reprint, or post in their own journal or repository?

Assuming that new models come into play such that elite journals can cover their expenses without the need to rely on copyright to extract economic value, they will still need the content to maintain their reputation and audience. So the journal will want to publish work of high significance, regardless of where else it may have appeared with a smaller audience, and authors will still want their publications listed with a citation to the journal with the highest prestige that will accept them.  In other words, impact factor is still important to both sides.

Shieber closes with his own draft of proposed language, which merits a separate post for some possible refinements and better recognition of the journal's interests in such a scenario, since the publication agreement must necessarily offer something of significant value over and above CC-BY for both the author and the journal to make it a desirable contract to execute.  Stay tuned, my six readers!