Who Owns the Rights to Faculty Publications?

A Duke blog is at center of discussion on waiver of faculty publishing rights

Nature journals

Photo: Duke's Kevin Smith has raised questions about the implications of publishing agreements used by one of the largest academic publishers. Photo from UCSF Library.

A blog post from a Duke scholarly communications expert has flared into a national conversation about possible conflicts between large academic publishers and universities' efforts to publicize research.

Kevin Smith, who advises Duke faculty about copyright law and scholarly publishing, prompted the debate after hearing from Duke faculty members who had published articles in journals operated by the Nature Publishing Group (NPG), which includes Nature, Scientific American and other prestigious journals.

Since 2010, Duke has asked faculty members to deposit copies of these articles in DukeSpace, an open-access repository of university research. NPG, like some publishers, place restrictions on open-access reuse of articles in their journals, but when faculty showed Smith the license agreement signed by the faculty members, he thought the restrictions went beyond normal procedures.

In fact, he said one possible interpretation meant that faculty could lose the right of the author to always have his or her name associated with the work.

As Smith wrote in his blog for Duke University Libraries:

My bigger concern, however, is found in clause 7 of the NPG "license," which reads in its entirety:

The Author(s) hereby waive or agree not to assert (where such waiver is not possible at law) any and all moral rights they may now or in the future hold in connection with the Contribution and the Supplementary Information.

I don't think most publishers require authors to waive moral rights (I have actually added them in to a publication contract), and insisting on doing so is a serious threat to core academic values.  Moral rights are recognized by most countries of the world (including the UK, where NPG has its corporate offices) and usually include two basic rights -- the right of attribution and the right to preserve the integrity of one’s work. 

The United States is something of an outlier in that we do not have a formal recognition of moral rights in our copyright law, although we always assert that these values are protected by other laws.  But my point here is to wonder why NPG requires all of its authors to waive their right of attribution.  This is not an incidental matter; the clause is carefully structured to attempt to get authors even from the countries that do not allow the waiver of moral rights -- they are considered that important -- still to promise not to assert those rights (whether or not that would be enforceable in those countries).  Nature actively does not want its authors to be able to insist that their names always be associated with their work.  Why?  Does NPG imagine reusing articles it is given to publish in other ways, without providing proper attribution?  If this seems like a remote possibility, it remains the only conceivable reason that NPG would insert this bizarre clause.

Smith typically attracts a strong audience for his blog posts, but this one drew an even greater readership, with scholars from around the world posting comments.  And it attracted the attention of NPG itself.  One NPG official responded to Smith in the blog's comments section, stating NPG "always attributes articles to authors."

We take seriously our responsibility for the integrity of the scientific record. The "moral rights" language included in the license to publish is there to ensure that the journal and its publisher are free to publish formal corrections or retractions of articles where the integrity of the scientific record may be compromised by the disagreement of authors. This is not our preferred approach to dealing with corrections and retractions, and we work with authors and institutions to seek consensus first.

The blog led to a further conversation between Smith and NPG officials, and others in the national media quickly picked up on the discussion.  Both the Chronicle of Higher Education and the New York Times have written pieces.

The original issue of NPG's forced waiver for Duke faculty authors has not been settled. However, Smith said even if the open access policy is waived for Duke authors, they can still voluntarily deposit their articles published by NPG in to DukeSpace after a six-month embargo period, in compliance with Nature's policies.

Smith said the conversation will continue and he's encouraging Duke faculty to change the "moral rights" language to ensure their right to authorship.

"I raise the question 'why?'" Smith told the New York Times. "Obviously the most fundamental thing authors get when they publish is credit, reputation. If their name isn't associated with the work, that is completely lost."