Why don't academics bypass restrictions on the distribution of their papers the same way as an institutional open access policy seems to do?

Question

I've learned that academics can ensure that their papers can be freely distributed, even when those papers are published at places that require transferring copyright, simply by granting a nonexclusive license to distribute the paper before signing anything with the publisher. Why don't academics use this method to enable broader dissemination of their papers by evading the restrictions that publishers try to impose?

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Premise: In the conventional (non-open-access) publishing model, the situation is as follows:

• Researchers write papers.
• Papers get published by publishing companies.
• Publishing companies generate revenue by granting paid access to the papers they publish.

The last item works because ways to get access to a paper without the paid subscription with the publisher are sparse. To ensure this remains so, in return for publishing papers (item 2 in the above list), publishers usually restrict alternative ways of distribution for the paper. For instance, they require exclusive distribution rights, or they require authors to agree to limit redistribution of the paper (e.g., only via one's personal website or in direct communication with other researchers).

From the point of view of researchers, it is certainly counterproductive to restrict access to published works. In cases where this access restriction was coupled with significant subscription fees, this has given rise to initiatives such as Cost of Knowledge. Hence, it seems the publication model of allowing publishers to restrict access to papers is more of a "necessary evil" than an optimal situation.

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In another question, it has transpired from an answer by ff524 that in the U.S., there seems to be an easy way to avoid the aforementioned "necessary evil" and evade publishers' restrictions:

there does seem to be a legal basis for the idea that a license granted to the university will persist even if an author later signs a conflicting copyright transfer agreement:

Section 205(e) of the Copyright Act provides that a prior nonexclusive license evidenced in a writing signed by the right holder prevails over a subsequent conflicting transfer of copyright ownership, so the answer appears to turn on whether permission mandates satisfy the requirements of § 205(e).

Concretely, Section 205(e) of the Copyright Act reads:

(e) Priority Between Conflicting Transfer of Ownership and Nonexclusive License.—A nonexclusive license, whether recorded or not, prevails over a conflicting transfer of copyright ownership if the license is evidenced by a written instrument signed by the owner of the rights licensed or such owner’s duly authorized agent, and if—

(1) the license was taken before execution of the transfer; or

(2) the license was taken in good faith before recordation of the transfer and without notice of it.

This seems indeed like a simple enough way to circumvent the distribution restrictions imposed by the publisher.

Note that while that particular question referred to a university-wide open access policy, such an arrangement does not seem necessary to invoke § 205(e). For example, a simple signed declaration such as "I hereby grant perpetual public and unrestricted access to this paper.", or even a printed and signed version of one of the common permissive open source licenses such as a BSD License, or one of the Creative Commons Licenses should suffice, if signed before agreeing to grant any rights to a publisher.

Restrictions by publishers on prior publications do not conflict with this, either, because authors can sign a non-exclusive license without making the work immediately available.

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This leaves me with the following facets of what I perceive as one big question:

If it is so easy to "disable" distribution restrictions imposed by publishers,

• what do authors gain from agreeing to transfer exclusive rights to publishers without preventing that rights transfer?
• why hasn't everyone (at least everyone subject to the respective jurisdiction) preemptively disabled these exclusive licenses to publishers for years?
• why hasn't the whole traditional publication market in the U.S. collapsed already?

As a bit of a clarification: This question is not asking why researchers publish in particular (e.g. highly reputable) venues. This question is asking why researchers accept the licensing restrictions imposed by such venues, even though there seems to be an easy way to avoid these restrictions without switching publication venues. Hence, while prestige or reputation of publication venues are valid answers to questions that deal with changing publication venues, they cannot possibly be an answer to this question.

Answer 1

The main reason is inertia and lack of information, I think.

• Researchers are not really aware of the costs their institutions have to face to subscribe to journals. From their perspective, publishing and reading are mostly free. It is not always easy to tell whether you have access to a PDF file because of your university's subscriptions or because it is open access. As long as they can download the file, they are happy, regardless of its origin. So, when they publish articles, they sign the copyright transfer agreement form without reading it, as they do not consider the publishing industry as a problem.

• Universities are unaware of the existence of rights retention policies (or even open access policies, in fact), or do not take the time to adopt them because they fear it will incur an unpopular burden on the faculty. Moreover, implementing such policies is complicated. To make sure researchers liberate their papers, you need a research information system keeping track of all the publications, their compliance with various policies. Shameless plug: we are building dissemin to solve that problem.

• Publishers leverage this inertia and laziness to secure a steady stream of income. They lobby to convince stakeholders that open access necessarily implies high charges at publication time. They also polish their image, by sponsoring conferences and learned societies. They give free subscriptions to Wikipedia editors and Article Processing Charges waivers in poor countries.

To answer the OP's comment: if you, as a researcher, simply release your paper in CC-BY (say) before signing the copyright transfer agreement form, then you consciously sign a form granting exclusive rights you cannot grant anymore: it does not work. That's written in section 205(e) (emphasis added):

(2) the license was taken in good faith before recordation of the transfer and without notice of it.

That is why you need an institutional policy granting these rights automatically for the researcher. For instance, the University of California has contacted as many publishers they could to give them formal notice of their policy, which allows researchers to sign the CTA forms without amending them.

Answer 2

This "legal loophole" is trivial for journals to close.

In fact, I wouldn't be surprised if most journals hadn't, in effect, already pre-emptively closed it.

Basically, any publishing agreement vetted by a halfway competent lawyer will already have a clause requiring the author to assert that they in fact do have the authority to grant the journal the rights that the agreement says they do. For exclusive copyright transfers, this is likely to include an explicit or at least implicit assertion that the author has not granted any prior conflicting licenses to the article.

For example, here's a quote from a sample publishing agreement I found on the first page of Google results:

Author Representations/Ethics and Disclosure
I affirm [that...]

• Except as expressly set out in this Journal Publishing Agreement, the Article is not subject to any prior rights or licenses and, if my or any of my co-authors’ institution has a policy that might restrict my ability to grant exclusive rights under this Journal Publishing Agreement, a written waiver of that policy has been obtained.

If it turns out that the author has, in fact, previously granted a non-exclusive license to the article to a third party, in a way that is not covered by the explicit permissions described in the publishing agreement, then the author will have violated the publishing agreement, and may be considered to have negotiated in bad faith (since they presumably knew about the previous license when they signed the publishing agreement). What happens next may vary, but at least the journal has perfectly valid grounds to retract the paper if the publishing agreement is breached.

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Of course, all this is negotiable.

If you do, in fact, want to both publish your paper in a traditional journal and also distribute it through alternative channels (like, say, arXiv, an institutional repository, your personal website, etc.), you can just tell the journal that you want to include an exception for that in the publishing agreement. You may even, if you like, grant such an alternative distribution license already before submitting your paper to the journal, in which case it's basically a "take it or leave it" deal for the journal — they can't force you to cancel the earlier license, but they can just decide that they don't want your paper.

In fact, many journals do already expressly permit, or at least implicitly tolerate, various forms of third-party article distribution. For example, the same publishing agreement I quoted above also explicitly permits "Scholarly Sharing", which is defined as:

Preprint: Sharing of Preprints by an author on any website or repository at any time. When the Article is accepted, the author is encouraged to include a link to the formal publication through the relevant DOI. The author can also update the preprint on arXiv or RePEc with the Accepted Manuscript.

Accepted Manuscript:
(i) immediately on acceptance: sharing of the Accepted Manuscript by an author:

• via the author’s non-commercial personal homepage or blog
• via the author’s research institute or institutional repository for Internal Institutional Use or as part of an invitation-only research collaboration work-group
• directly by providing copies to the author’s students or to research collaborators for their personal use
• for private scholarly sharing as part of an invitation-only work group on commercial sites with which the publisher has a hosting agreement

(ii) after the embargo period: an author may share the Accepted Manuscript via non-commercial hosting platforms (such as the author’s institutional repository) and via commercial sites with which the publisher has a hosting agreement.

While this is not a carte blanche to let you license your paper to just anybody under any terms, it does allow you to e.g. submit your paper to an institutional preprint repository, like the UC open access policy mandates. After waiting out the embargo period, it even lets you submit the accepted version of your paper to such a repository, too.

Of course, journal publishers don't grant such generous permissions just because they feel kind and altruistic — they do so because authors have actively insisted on such permissions, and because they judge that any potential loss of income from such non-commercial paper distribution will cost them less than the loss of manuscripts from boycotting authors, and/or the PR cost of sending lawyers after respected academics who are just doing what they consider to be reasonable and customary sharing of scholarly information. The publishers know that they can only go so far in demanding exclusive distribution rights without risking a major backlash, and they're generally smart enough to adapt and make the best of the situation by explicitly releasing those rights that they couldn't practically enforce anyway, and making it look like benevolence on their part.

So, in short, there is no legal trick to "disable" distribution restrictions by publishers — at least not one that would work more than once per publisher. What does have a chance of working is politics, media and activism: publicizing the issue, exerting pressure on publishers, and voting with your feet. A CC license grant in your back pocket, however, isn't going to be a silver bullet.

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Addendum: So what is the point of an institutional Open Access policy, like the University of California has recently enacted, then, if it's not a legal trick to get around publishers' agreements?

The way I see it, this policy accomplishes several things:

• Making free preprint distribution the default rather than an exception. For a long time, many publishers have already permitted such distribution, but since it involves extra work for authors (both figuring out whether such distribution is permitted, and then actually uploading the papers), a lot of them may not have bothered. By making preprint distribution the institutional default, and requiring authors to get an explicit waiver to opt out, submitting papers to the repository becomes the "path of least resistance" for authors.

• Centralization: Even when authors do make their preprints available, it's often on their personal web pages, where they may be hard to find and which may or may not persist. The UC policy requires all preprints to be submitted to a single centralized repository, where they can be reliably stored and indexed.

• Building up a critical mass: If an individual author e-mails a journal that doesn't normally allow preprint sharing, and asks for an exception to their standard publishing agreement, the publisher may be tempted to just brush them off as not worth the trouble. With an institutional policy, publishers with restrictive publishing agreements now face a choice between a) relaxing their terms to make them compatible with the policy, or b) requiring all authors from UC to obtain waivers. As more and bigger institutions adopt such policies, option (a) starts looking more and more attractive to publishers.

• Institutional support: At institutions and departments with no prior tradition of doing so, an author who wanted to upload their papers to a preprint server may have been essentially on their own — they'd need to figure out all the legal and technical details themselves, and if they needed to negotiate the matter with a publisher, they'd basically be one person wrangling with a big corporation. If they asked for help from colleagues or admin staff, they might be met with shrugs and blank stares.

  With the new policy, authors now have the whole university behind them, both in negotiations and simply in dealing with the technicalities. They can also have confidence that, if they should happen to accidentally violate an ambiguous publishing agreement by uploading their paper to the institutional repository, the university will support them in negotiating a settlement with the publisher.

• Establishing a presumption of preprint sharing. Arguably, by setting up the open access policy and announcing it widely, the university is creating a presumption that publishers should know about the policy, and thus know that they need to ask authors from UC to submit a waiver if they don't want to allow institutional preprint distribution. If the journal accepted a manuscript from a UC author, without clearly communicating the need for a waiver, they might be argued to have implicitly consented to the preprint distribution, especially if the situation was otherwise ambiguous. This is a legal trick of sorts, but it's not really a loophole so much as simply stacking the playing field, and it's only possible because the university is big enough that publishers might be reasonably expected to be aware of their general policies.

Answer 3

One important thing to bear in mind is that a policy like this is not a silver bullet. Simply solving the copyright question won't actually mean people then go on to make material available.

The proposed approach would allow authors to distribute the "original" (ie preprint, postprint, author's version) - text, formatted as they wish, without page numbers, journal copyediting, etc. Those pretty shiny journal PDFs would still be out of reach.

This is actually more or less the situation that exists in the UK right now - there is the important distinction that an embargo period is involved here, but otherwise, something like 95% of academic articles can be posted and redistributed by their authors in this way. To do this, we've used funder mandates (and pushing the publishers into agreeing embargos) rather than hacking at copyright transfers on an institutional level, and it's generally worked okay.

The problem is, the articles don't get made available. Or, at least, a lot of them don't. Many institutions are finding it difficult - even with someone paid to chase academics and hold their hand through the process - to get more than about 50% of eligible papers made available through a repository. Indeed, for some institutions, even identifying those papers to begin with is challenging.

In the event that every university in the US overnight made every researcher sign a pre-emptive copyright license like this, I suspect you'd have the same problem. Yes, it could technically happen. But inertia would limit what actually does happen.

Answer 4

Because they don't care.

The majority of their relevant readership has access to their work via institutional subscription and they value journal quality and prestige over the business model or copyright policy. Sometimes they upload preprints or send them to colleagues who ask politely.

what do authors gain from agreeing to transfer exclusive rights to publishers without preventing that rights transfer?

This administrative hurdle being done, the paper can be published and they can go back to science.

why hasn't the whole traditional publication market in the U.S. collapsed already?

Probably because the monetary incentive to curate for quality and impact (an incentive absent from OA models, and reversed for author-pay OA) results in journals that are more prestigious.

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On a side note, I wouldn't worry too much about "traditional" publishers should subscription fall out of fashion, they already cater to authors who absolutely wish to spend research funding on article processing charges. Also I suspect they perfectly know that the potential monetary gain is huge, especially if editorial rejection gets less and less fashionable (infinite papers!).

Over the last 5 years, buying Elsevier stocks would have been a much better use for one's money than article processing charges:

Answer 5

The vast majority of young mathematicians with substantial publishing activity do indeed grant the arxiv such a license. This was a slow cultural adaptation and took over a decade. Some other disciplines are the same (it's even more universal in physics), but others aren't as far along in this process. Finally, the big tabloids (Science, Nature, etc) have embargo policies, which can scare authors off from posting preprints in some fields. (As pointed out in comments, this is more due to confusion and fear than to the actual terms of the embargo policy.)

Answer 6

Academics, by and large, do bypass restrictions. I hardly ever come across papers I can't find a PDF of just by googling their titles, and when once in a while that doesn't work I can always just email the contact author; every published paper specifies one.

This question strikes me as propaganda. The gold open access policy discourages people from publishing by putting a price on publication, and it is enriching academic publishers more than ever. For example, here are numbers about how much money is being spent by UCL on "gold open access" / bribing to publish. https://www.ucl.ac.uk/library/open-access/statistics

Answer 7

"Why don't they bypass restrictions?" ... well, they do. Lots of us/them do. We just make sure to distribute copies well enough before ever getting into any discussion about transfering rights. Then those publisher types can't fault anyone for continued dissemination of those copies.

Answer 8

How about access to appropriate peer reviewers and a credential that somebody has checked that the paper is not complete rubbish? It also allows better indexing so that papers are easier to find.

If researchers simply put up their results, how would other researchers be able to identify papers they should read? After all, anyone can draft and post something that looks like research. At the moment, almost all the junk (and unfortunately some of the quality) gets filtered out. I already have a large task keeping up with the relevant literature, if I also had to scan everything to assess its relevance, I would never get anything done.

Of course, journal publication is not a perfect indicator of quality but it's a bit like a medical test that is mostly correct.

UPDATE

Two commenters (including OP) have asked how this answers the question, so I appear to have been a little brief.

As an author - I gain access to a reviewer pool and a badge of credibility. That is, the editor and/or publisher maintain a database of contacts with a wide assortment of expertise who the editor can ask to review the paper and reasonably expect that the person will review the article in a professional way. Having gone through that process, publication confers credibility on the article that cannot be achieved by sticking it up on my personal website.

That badge of credibility combined with the various indexing processes (which only search through journals and potentially conferences etc) means that other relevant researchers can easily find my work. Compare the returns you get from google scholar against the returns from google using the same search terms. That indexing helps enormously.

In return for this, I sign over some rights and I don't try to break the publisher's business model.

This is not to say that I think journal publication is the only solution or that the current process could not be improved. But the question asked what authors get in return for signing over IP. This is what I get with my author's hat on.