8

Some publishers have a clause like the following in their author instructions:

Submission of a manuscript implies... that if and when the manuscript is accepted for publication, the authors agree to automatic transfer of the copyright to the publisher.

I found many instances of this among disreputable publishers. But I was surprised to also see this policy at more than one Springer journal and a handful of other, reasonably reputable, venues.

I was also surprised, because we occasionally get questions here about withdrawing a paper after acceptance. The first thing we ask them is generally, "Have you signed a copyright transfer yet?" with the implication that before signing anything, you still hold the copyright to the submitted work.

So, what exactly is the automatic transfer of copyright referred to above?

Has this been enforced, traditionally? Is it even enforceable, generally speaking?

Or is it just a clause that some sketchy publishers put in there to deceive authors into believing that they don't have the right to withdraw their paper from the journal after acceptance?

  • Thinking about it you could ask the same thing about regular clicked copyright transfers: How can the publisher prove that you actually clicked that button? (I wonder which Stack Exchange is the right place to ask about the legal provableness of web forms in general.) – Wrzlprmft Sep 19 '14 at 19:58
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    I suppose the most charitable interpretation is, "read the copyright agreement now, so that if you don't agree with it, you can save everyone's time by not submitting". They may have had cases where they reviewed and accepted a paper, only to have the author decide the terms of the copyright transfer were unacceptable and scuttle the whole process. – Nate Eldredge Sep 19 '14 at 20:28
  • @Nate or (more likely, I think) an author wants to withdraw a paper after acceptance to submit to another journal – ff524 Sep 19 '14 at 20:52
4

A lawyer would be best suited to answer this, but as I have had several business law classes as part of my business education, I'll hold forth based on my understanding of intellectual property and contract law in an educational context.

The answer would be yes, that it should be generally enforceable.

Laws vary by state even in the United States, but in general, qualities that can make a contract unenforceable are:

  • Lack of capacity of the parties (legal age, sound minds, etc.)
  • Fraud or misrepresentation
  • Violation of public policy

None of the above apply to our situation (unless, for example, we have a precocious or senile scholar).

Enforceable contracts also require:

  • Consideration (exchange of something of value)
  • Meeting of the Minds (mutual agreement of terms)
  • Offer and Acceptance

Now let's analyze these requirements. Is there mutual exchange of value? The journal appears to offer that in exchange for copyright, the author gets to be published in a prestigious journal. Does the author agree at the time of offer and acceptance? Then we have an enforceable contract.

So this brings to light a strategy for attempting to retain copyrights of your work. Insist by striking through such language in a contract and make a statement that you, the author, retain copyright, and put your initials by the alteration. If the contract is in electronic form, communicate this through email just prior to and just after submitting your request electronically.

If they do not object, and rather, accept your submission, I would assert that you have established that any possible claim by them to your work is either completely unenforceable (certainly, in the case of a written contract) or (in either case) liable to cost them a great deal in legal fees to pursue.

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    The journal appears to offer that in exchange for copyright, the author gets to be published - actually, the Springer site says "Submission of a manuscript implies..." which means that publishing is not part of their offer. They are only thinking about publishing your work. I would argue this is "illusory consideration" (consideration which looks like it is there but actually is not there). – earthling Sep 19 '14 at 23:18
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    Sure, but if they don't accept, they don't have copyright. They only have copyright should they choose to publish it, under their terms, which is why the author may insist on altering the terms. But that's a good point that I did not discuss. Thanks for that, @earthling. – Aaron Hall Sep 20 '14 at 0:33
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    I don't understand "if they don't accept". You mean if they don't accept your modified offer? They have made a offer which you accept by submitting. When you submit it would normally be considered an implied contract (not a written one). I see nothing in their terms about publishing. Although, it's late for me, perhaps I'm just missing something...but we might be going in two different directions here. – earthling Sep 20 '14 at 11:46
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    @earthling: I believe he means that, if the journal rejects the paper, then the contract is not established. – Oswald Veblen Dec 6 '14 at 12:54
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To my knowledge, in the US, copyright transfers must be specific to the work in question and in writing in order to be legitimate. The hard part is whether the language covers your submission and is included in some terms of service to which you agreed. I have my doubts that a general statement saying that anything you submit automatically implies transfer would hold up in court. Such a statement doesn't properly identify the work being transferred, and "I agree" in this case probably doesn't count as a signature. I'm not saying that electronic signatures can't be done, but go look at the IEEE Copyright Form (PDF) for an example of one that's been created in good faith by a professional society.

-5

My personal opinion only here. It is a problem that has arisen in the last few years as publishers have started to realize that nobody reads printed journals. They want to be able to charge for access to the online versions, and seem to think the only way to do this is by taking copyright from the authors. This is an issue at, e.g., US National Labs, where the US government owns the copyright and has no intention of signing it over to a publisher (US or not).

I view it as a particularly irritating, but ultimately temporary, problem. The moment any publisher goes after an author for hosting a copy of their own publication it will be widely known and the publisher will suffer. But until the lawyers figure it all out we will have to fight back.

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    The question isn't about the general practice of requiring authors to sign over copyright, it's specifically about a clause that says that copyright is automatically signed over on acceptance of a paper. – ff524 Sep 19 '14 at 19:09
  • Oh absolutely - you had to give them the right to publish it, but you retained rights as well. Now they want it all, leaving you with nothing. There is a big difference in the wording and intent of the copyright form. – Jon Custer Sep 19 '14 at 19:51
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    There's a misunderstanding here. The difference isn't the rights that are signed over or retained - it's when that transfer is agreed to. Normally you are not asked to agree to a copyright transfer until after the paper is accepted. In the case @ff524 describes, the author is asked to agree in advance, upon submission, that they will sign over the copyright if the paper is accepted. – Nate Eldredge Sep 19 '14 at 20:27

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