Can an advisor use part of an unpublished paper in a project deliverable without your consent?

Question

A previous position of mine was funded by a EU research project, which requires publishing a project deliverable. These project deliverables are public and citable documents that are available online and are usually indexed by research databases. In a deliverable of this project, my ex-advisor used text, figures, and tables of an unpublished research paper of which I am the lead author and which I still intend to publish. Initially, I was not listed as an author of the deliverable; in a later version I was. Most importantly, I was never informed about this or asked for my consent.

My question is: Is this ethical/correct/appropriate? I’m not against of reporting my work to the deliverable as I have done it during the course of two years contributing to several of the deliverables. My problem is that I think as the lead author I have the right to be informed that the text and results of the paper that I wrote are going to be used in a deliverable.

Answer 1

Questions of ethicality usually don't have a clear-cut answer, and this is no exception. Fundamentally, you should of course retain a say in what happens to the research that you produced as a grad student. On the other hand, it also seems completely fair and natural to include your work in reports to the funding agency that sponsored your work. Objecting against this may be an ethical violation in and of itself. Strictly speaking, and I am definitely not a lawyer, not reporting work that has been done in the context and using the money of an EU project may be a breach of the contract that your home institution has with the European Union (one would need to know the terms of the framework programme that the institution needs to sign when joining a project).

However, your main problem seems to be (from a comment):

EU Project deliverables are usually published and a citable piece of work and they are different from NSF progress report. If it was a progress report or a poster it was totally fine with me, but when a major part of the paper now is published in the report I cannot submit my manuscript to a venue anymore unless I make a major revision.

Based on my experience in 3 EU projects, this is, in the generality you describe, just not true. Deliverables per themselves can be public or confidential, which is described in your Description of Work. Even if they are public, that usually just means that they are uploaded to your project's website (and maybe some third-party project result aggregator, depending on what clusters and collaborations your project is part of). While these deliverables do get the occasional citation, they are not formally published and should really not preempt further publication, even in verbatim. I would see this in the same way as a preprint - for most journals, uploading a preprint to arXiv or PeerJ does not mean that you can't submit to a journal, so why would your text appearing in an un-reviewed project report?

It is also my practical experience that most scientific reports consist largely, or at least to a significant part, of copied papers, some of them published and some unpublished at the time of submission. Hence, your ex-advisor's behavior is at least completely in line with what other PIs do and expect in such projects.

That all being said, I have once worked in a project that, by default, published a book volume once a year with Springer which collected all reports of the project. This would indeed count as formal publication. However, even if this or a similar arrangement is the case for you, a compromise could be found that your work appears in the "official" report to the EU and is retracted from the resulting book publication.

Answer 2

My assumption here is that this is a project where, though you developed it, you developed it in collaboration with your advisor, with advisor's funding, and within the advisor's broader research area. I also expect that when (or if) the paper is submitted, it will have the advisor's name on it, and you agree that's reasonable. If these aren't true, maybe some of the following would change.

Some examples of "project deliverables" and what I'd think:

Report to funding agency, public or private, or industrial collaborators: absolutely appropriate for your ex-advisor to show the results of your collaborative work to the funding agency.

Public seminars, posters: appropriate and common for your advisor to assume it's OK to show your results. You should hopefully be credited when this happens. If you have objections (i.e. you're worried about being scooped), you need to tell your advisor first.

Other deliverables: I could imagine your research being used as an example figure in a manual for a piece of equipment. This might be a bit less clear, and it wouldn't be unreasonable for the student to be credited - but I don't know if the student should be able to veto this.

Review paper: I have seen advisors discuss unpublished results in review papers, even including figures. This is sensible if either a) the paper is currently in submission, and expected to be published before the review comes out, or b) it is expected that the paper will not be published in its current form. If a), it would be polite to ask the students' permission. If b), the student should be a co-author on the review.

Separate research publication purporting to be original research: absolutely not OK. Student should be listed as author and needs to consent.

Answer 3

This is not the place for legal questions, and we are not lawyers. (I am not a lawyer either.) Your specific situation (contracts you've signed) and local laws are the only relevant things here. You should consult a lawyer.

That said, in general it will probably be the case that as a graduate student you are considered to be like a faculty member of the university when it comes to intellectual property. You probably retain the copyright to scholarly works you produce, but the University probably retains the right to use your copyrighted work for business purposes. Even if they did not, you would have to show some kind of harm under copyright law for a legal battle to make any sense.

Whether it is ethical or appropriate depends a lot on the situation, and "project deliverable" is extremely vague. It would not be appropriate for your adviser to publish your work in an academic venue without your consent. However, if your work was funded by an external agency such as NSF, NIH, or a private foundation then your research was paid for by that agency. It would probably be appropriate for your adviser to show your results in (for example) an NSF progress report or an NSF poster presentation to demonstrate the status of the work.

Answer 4

I agree with the other answers that "legal" is probably not the right way to think of this. However, I disagree with the other answers who claim that it might be ethical as long as it is not an "official publication" or something of the kind.

If the project deliverable will be available to the public, no matter whether it is an official publication or not, I would think it is simply unethical to put your work in there without your consent. Generally speaking, I don't think it can be ethical to put someone else's work online, no matter the medium, no matter your authority relationship with them, without asking them for permission beforehand. (What matters to be is the public aspect; if the deliverable was an internal thing which didn't end up online, I would say otherwise.)

Of course, as other answers pointed out, if you are being funded/employed by this project, you may have a legal or ethical duty to accept that your work ends up in the deliverables; but I still think your advisor should at least let you know that this will happen, and should take into account reasonable objections (e.g., "I am concerned that the deliverable will be a problem when writing a paper with the work"; or "the work is unfinished and I am concerned it is not of sufficient quality to be published").