When scientists hand over their valued papers to journals, they sign a bunch of paperworks. Kevin Smith, JD working at Duke University, went through the legal language of one such contract issued by Nature Publishing Group. The following sentence from his blog post is the most disturbing (“But a careful reading shows that the retention of copyright under this license is essentially a sham.”), because we have been fooled by the same language. We are posting the critical part of his analysis below.
As my sense of outrage grew, I began to explore the NPG website. Initially I was looking to see if authors were told about the waiver requirement upfront. As far as I can tell, they are not, in spite of rhetoric about transparency in the information for authors page. The need for a waiver is not even mentioned on the checklist that is supposed to guide authors through the publication process. It seems that this requirement is communicated to authors only after their papers have been accepted. I suspect that NPG is ashamed of their stratagem, and in my opinion they should be. But as I looked at NPG policies, and especially its License to Publish, my concern for our authors grew much deeper.
Two concerns make me think that authors need to be carefully warned before they publish in an NPG journal.
First, because this contract is a license and tells authors that they retain copyright, it may give authors a false sense that they are keeping something valuable. But a careful reading shows that the retention of copyright under this license is essentially a sham. The license is exclusive and irrevocable, and it encompasses all of the rights granted under copyright. It lasts for as long as copyright itself last. In short, authors are left with nothing at all, except the limited set of rights that are granted back to authors by the agreement. This is not much different than publishing with other journals that admit up front that they require a transfer of copyright; my concern is that this one is dressed up as a license, so authors may not realize that they are being just as completely shorn of their rights as they are by other publishers.
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 dont 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 ones 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.
An editor from Nature replied to him about the ‘moral right’ issue, and our readers can see it here.