I am currently reviewing a paper, which has this statement in the acknowledgements:

The United States Government retains and the publisher, by accepting the article for publication, acknowledges that the United States Government retains a non-exclusive, paid-up, irrevocable, world-wide license to publish or reproduce the published form of this manuscript, or allow other to do so, for United States Government purposes. Source

As a reviewer, I could simply ignore it. However, it seems rather weird to me, since usually after acceptance you have to sign a form which deals with exactly this kind of right transfer / copyright etc. The editors and referees do not have any legal power over this anyway.

Does my role as a reviewer also include to mention this to the editor who should forward it to the publisher, or should I simply ignore it, on the risk that this statement potentially collides with the journal policies?

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    Clearly the author is a federal employee and their work is in the public domain: en.wikipedia.org/wiki/… The publisher is legally mandated to include such a disclaimer, see also law.resource.org/pub/us/works cendi.gov/publications/04-8copyright.html . Many publishers have their own language for this, see e.g. Springer "If you are employed by NIH" springer.com/gp/open-access/authors-rights/funder-compliance/… – Nemo Dec 14 '18 at 20:36
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    This isn't a transfer of copyright, this is a retention of a right already held. – Acccumulation Dec 14 '18 at 21:41
  • @Nemo That does not state that the work is in the public domain, it states that the U.S. government has a limited but perpetual license. And, while a good practice, a publisher is not required to include a disclaimer that a portion of the work in the final publication is in the public domain. – TimothyAWiseman Dec 15 '18 at 0:37
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    @TimothyAWiseman "public domain" is not defined in the law, so you will not find a disclaimer saying something is in the public domain; the license may be limited (in which case it's a contractor rather than an employee) but "or allow other to do so" is a right to sublicense or worldwide unlimited use which is more easily affirmed for public domain material. The publisher is required to include a notice, read the law again: law.cornell.edu/uscode/text/17/403 – Nemo Dec 15 '18 at 9:45
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    Keep in mind that copyright transfer forms tend to have explicit allowances for these kind of cases. (At least where I have seen them.) - If anything, I'm sure the editor will discuss this with the authors if it were the problem. I don't see a scientific problem in that statement - nor a conflict of interest which would be relevant to a reviewer. – DetlevCM Dec 15 '18 at 18:03

You can mention it to the editor in your report, but you do not need to. Your job is to evaluate the correctness and other merits of the manuscript's contents, not to deal with issues such as copyrights. Those are the job of the editorial staff. Moreover, the editors and publisher are probably experienced in dealing with the copyright requirements of government employees and should know to be on the lookout for situations like this.

If you want to mention it, I would suggest saying something like:

I noticed an statement about copyright in the acknowledgements, something that I had never seen before. I just wanted to bring this to your attention so it does not get missed.

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The article (i.e. its contents and references) are within your remit as a reviewer.

Checking copyright details and investigating any the legal ramifications will not be relevant to the review you should be doing.

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    Right, the arrangement between authors and journal is for them to handle. In fact, except in rare cases, I see little need to comment on the comments of the acknowledgements section. – Anyon Dec 14 '18 at 13:09

I think it is pretty unlikely that the editor isn't already aware of this, but, yes, you should mention it somewhere in your report to the editor. It amounts to a restriction on what the publisher can claim as "reserved rights".

It says, in effect, that if the publisher, accepts this article (and obtains its copyright) the publisher must thereby grant the U.S. Government a license of a certain sort. This means a conditional transfer of copyright.

My guess is that this is fairly standard for work produced by the government and in some cases, work produced by others on government grants. The government doesn't want to create a work and then have to pay to use it internally (i.e. for U.S. Government purposes).

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    As an FYI if the US Government pays for something to be created, it can be illegal for the government to pay for access it (Intellectual property law varies across US Government agencies). – Richard Erickson Dec 14 '18 at 13:18
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    You are right -- this is fairly standard for work performed under government contract. It's likely also applicable for a fair amount of grant-funded work as well. Note in particular that the license only extends to government-purpose use -- it does not grant them permission to further publish or resell it. – Tristan Dec 14 '18 at 14:35
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    Yeah, your guess is correct. This is completely normal and required by law. – reirab Dec 15 '18 at 0:28

It is your prerogative what to do about this, but it is not your legal duty to review the copyright procedure. It is a publisher's legal duty.

What you mention about standard procedure about copyright transfer agreements or licenses is not obvious, given that it's dependent on the publisher's procedure what this entails. Open access publishers, for example, do not require any transfer or exclusive license. Most publishers share their procedures online, but most do not check this (nor is comprehension of these agreements obvious, see also this study)

U.S. federal works are not copyrightable under 17 U.S.C. § 105, so it makes perfect sense the authors state this if they are federal employees. Previously, works by federal employees (for example Barack Obama in Science) have had their copyright claimed by publishers upon publication, which is against this law.

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    As an FYI, journals own the formatting of US Government works (e.g., the formatted PDF version of the article), but the content is non-copyrightable. For example, one can reuse the text and figures or re-distribute the manuscript version (non-formated text), but one often cannot re-distribute the journal's PDF of the article. – Richard Erickson Dec 14 '18 at 13:19
  • Along with @RichardErickson comment, there may be trademark rights in the formatted article that the Government and public does not receive unlimited rights to exploit. This would be the name and logo of the publication, and also things like distinctive colors, art and formatting on the page. – user71659 Dec 14 '18 at 17:55
  • You could improve this by being more specific. Works by the federal government are not copyrightable. It makes perfect sense for a publication to note that. But the statement in question here does not say that it is a federal work or is not protected by copyright. That would require a different statement. – TimothyAWiseman Dec 15 '18 at 0:41

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