Author: Charles W. Bailey, Jr.

Back in the early 1990s, I began to fight to retain the copyright to my scholarly writings. First, the publishers thought I was kidding. Then, when it was clear that I wasn’t, they thought I was nuts. Generally, they weren’t willing to negotiate. So, I sought out the few journals that would comply with this strange whim or that had editors who would "forget" to have me sign an author agreement. Unfortunately, some of the more liberal journals got gobbled up by megapublishers, limiting my options and casting some doubt on handshake deals. Once e-only journals by nonconventional publishers took off, they became my venue of choice, since they typically allowed copyright retention by default.

Things have changed, in large part do to the growing influence of the open access movement. Now, many publishers allow self archiving of e-prints (electronic preprints or postprints), and this, in theory, means that authors can cheerfully assign their copyrights to those publishers. How many publishers do this? Well we don’t know for sure, but according to Summary Statistics So Far (whose figures are based on the Romeo Project), 92% of the 8,450 processed journals are "green," (can archive postprint) or "pale green"(can archive preprint). (Gray means you can’t archive either one.)

If you want to self archive a scholarly article, the SHERPA Publisher Copyright Policies & Self-Archiving site is the place to go to determine whether the publisher of the journal you have in mind for your article will permit it. So, when approached recently about writing a paper for a library publisher (let’s call it X), I fired up Mozilla and looked X up. Good news, X is green, meaning "can archive pre-print and post-print." Not the dreaded white ("archiving not formally supported"), not yellow ("can archive pre-print (ie pre-refereeing)"), not even blue ("can archive post-print (ie final draft post-refereeing)"), but green. SHERPA did warn me of two conditions: "Published source must be acknowledged" and "Eprint server is non-profit." No problemo, right? Being ever cautious, I then used the handy link to the actual policy.

Here’s what I found. My "preprint distribution rights" allow "posting as electronic files on the contributor’s own Web site for personal or professional use, or on the contributor’s internal university/corporate intranet or network, or other external Web site at the contributor’s university or institution, but not for either commercial (for-profit) or systematic third party sales or dissemination, by which is meant any interlibrary loan or document delivery systems. The contributor may update the preprint with the final version of the article after review and revision by the journal’s editor(s) and/or editorial/peer-review board."

My publication page, check. We don’t have an institutional repository yet, but I assume that "other external Web site" will cover that when we do, check. Wait a minute, what if I want to deposit the e-print in a disciplinary archive like E-LIS or I want to put it in the Internet Archive’s upcoming "OAI-compliant ‘universal repository‘"? Looks to me like I’m out of luck. No way to immediately deposit the paper in an OAI-PMH compliant archive that will have a longer life than my Website and that can be harvested by OAI-PMH search services, such as OAIster.

The agreement also states that the e-print must contain a fair amount of information about the publisher and the paper: the published article’s citation and copyright date, the publisher’s address, information about the publisher’s document delivery service, and a link to the publisher’s home page. Guess I can do this when I’m modifying the article to incorporate the editorial changes. That should keep me off the streets.

So, what can we conclude from this brief dip into the murky waters of author agreements other than retaining rights may still be a good idea (if you can do it)?

First, There are swirling currents of complexity beneath the placid surface of color-coded copyright transfer agreement directories. This is not to say that such directories are not indispensible (or not doing a good job), but rather that, given the idiosyncratic nature of such agreements, authors still need to read the details if they want to be fully aware of their residual rights. They may not always like what they find, and what they find may affect their willingness to self archive if it’s too limiting or burdensome. "Green" may not always mean "go."

Second, it would be helpful if such directories could identify whether articles can be deposited in key types of archives. I know that we don’t want the color codes to look like SpeedyGrl.com’s Ultimate Color Table, but I think that this is an important factor in addition to the type of e-print permitted.

Third, if claims are going to made about the number of "green" journals, maybe more consideration about what "green" means is in order, and perhaps OA advocates should agree on their color schemes. Is "can archive pre-print and post-print" enough for "green," or should it be "can archive pre-print and post-print on the author’s Website or in any noncommercial archive or repository"? If the latter, the heat should be turned up on publishers that don’t permit it by authors and OA advocates.

Fourth, although copyright transfer agreements have always been a confusing mess, now we want authors to actually read and evaluate them, not just mindlessly sign them like they did when digital archiving wasn’t an issue. And institutional repository managers (or archive managers) need to make sense of them postfacto to determine if articles can be legally deposited and what terms apply to those deposits. So, maybe it’s time to tilt at a new windmill: a set of standardized copyright transfer agreements. I know, it’s like trying to herd several thousand hyperactive cats. But, a few years ago, getting standardized use statistics for electronic resources from publishers seemed hopeless, and some progress has been made on that score.