The Occasional Pamphlet

…going after plagiarists on legal grounds… “Judge Coco Declares Ang Out of Line!” image by flickr user Coco Mault used by permission.

One of the services that journal publishers claim to provide on behalf of authors is legal support in the case that their work has been plagiarized, and they sometimes cite this as one of the reasons that they require a transfer of rights for publication of articles.

Here’s a recent example of the claim, forwarded to me by a Harvard author of a paper accepted for publication in a Wiley journal.[1] The article falls under Harvard’s FAS open-access policy, by virtue of which the university held a nonexclusive license in the article. The author chose to inform the journal of this license by attaching the Harvard addendum to Wiley’s publication agreement. Wiley’s emailed response to her included this explanation:

You recently had a paper accepted for publication in [journal name] and signed an exclusive license form to which you attached an addendum from Harvard University. Unfortunately, we are unable to accept this addendum, as it conflicts with the rights of the copyright holder (in this case, the [society on whose behalf Wiley publishes the journal]). They guarantee the same rights that our copyright forms guarantee, but Harvard University, unlike Wiley, offers no support if your article is plagiarized or otherwise reused illegally.

(It then went on to list various rights that Wiley grants back to authors of articles in this journal, such as posting manuscripts in repositories, all of which are laudable, though they remained silent on their required 12-month distribution embargo.)

I have no problem with publishers requiring waivers of the Harvard open-access policy as a condition of publishing in their journals. They are their journals after all. And in the event, only a small proportion of articles, in the low single digits, end up needing waivers. But I bristle at the transparently disingenuous argumentation for their requirement. They make two separate arguments.

1. The addendum “conflicts with the rights of the copyright holder”, the society on whose behalf Wiley publishes the journal.

   Wait, what? How is the society the copyright holder? Until the author signs a publication agreement, the author is the copyright holder. And the publication agreement itself doesn’t involve a transfer of copyright, but rather, an exclusive license to Wiley on behalf of the society. And anyway, whether it’s an exclusive license or a wholesale transfer of copyright, that doesn’t conflict with the addendum by virtue of the plain words in the addendum: “Notwithstanding any terms in the Publication Agreement to the contrary, Author and Publisher agree as follows:…”.

2. If the addendum were allowed, “Harvard University, unlike Wiley, offers no support if your article is plagiarized or otherwise reused illegally.”

   Suppose that were true. (Though how would Wiley know what support Harvard gives its faculty when their work is plagiarized or used illegally?) Why would that be an issue? Nothing stops Wiley from providing that support on behalf of its authors, with or without the addendum. Either way it still receives an exclusive license from the author. Others illegally using the work are still violating that exclusive license.

   Unless of course the violator received a license by virtue of the prior nonexclusive license to the University mentioned in the addendum. Could that happen? Nope. The university uses its license only to authorize a particular set of uses. You can read them at the DASH Terms of Use page (see the “Open Access Policy Articles” section). They do not include plagiarism as a permitted use, or any illegal uses. (Is it even necessary to point that out?) The university also grants the authors themselves the ability to exercise rights in their article. But if someone explicitly received and exercised rights from a rights-holding author, it’s hard to see how that’s an illegal use.

   More fundamentally, however, there’s a basic premise that underlies this talk of publishers requiring exclusive rights in order to weed out and prosecute plagiarism, namely, that publishers would not be able to do so if they didn’t acquire exhaustive exclusive rights. But there’s no legal basis to such a premise that I can imagine.

   Plagiarism per se is not a rights matter at all, but a violation of the professional conduct expected of scholars. Pursuing plagiarists is a matter of calling their behavior out for what it is, with the concomitant professional opprobrium and dishonor that such behavior deserves. Publishers should feel free to help with that social process; they don’t need any rights to do so.

   Being “otherwise used illegally” gets more to the heart of the matter, as rights violations are presumably what the publisher has in mind. But it’s hard to see how publishers would need any rights themselves just to help an author out in prosecuting a rights violation. Suppose a publisher, rather than acquiring exclusive rights in an article, instead had authors license their articles under a CC-BY license. The publisher could still weed out and prosecute illegal uses of the article. There would be fewer opportunities for illegal use, since CC-BY allows lots of salutary kinds of use and reuse, subject only to proper attribution to the author and journal. But illegal uses might still arise from violating the attribution requirement of the CC-BY declaration. Nothing stops the publisher from looking for such gross plagiarisms of the articles they publish that rise to the level of rights violation, and from prosecuting the plagiarists on behalf of the authors. They could even write that into their agreements: “The Author grants the Publisher permission to prosecute violations of this license on the Author’s behalf, etc.”[2]

   (As an aside, the offer to prosecute plagiarists and rights violators isn’t much of a benefit in practice. How many instances of publishers going after plagiarists on legal grounds based on the publisher’s holding of rights have there ever been? As Jake said, “Isn’t it pretty to think so?”)

What’s really going on here is not a mystery. The publisher doesn’t like the idea of the author distributing copies of her work. The primary difference between the rights the publisher wants to grant the author and the rights specified in the open-access policy is that the former stipulates that the author not distribute copies of her article for twelve months after publication. The publisher is objecting so as to force a waiver of the open-access policy license to preserve their ability to limit access to the article. Of course, saying “we won’t accept the addendum because we want to limit people reading your article” doesn’t sound nearly as good as “otherwise we couldn’t go after plagiarists”.

Publishers are welcome to require waivers of Harvard’s open-access policies and the similar policies at other institutions, but hiding behind faux arguments in their explanations to authors isn’t attractive. They should come clean on the reasoning: They think it harms their business model.