How can Springer and Wiley put a 12 month embargo on posting post-review revisions to the arXiv and similar?

Question

This question was inspired by the recent question on posting to Academia.edu.

The general copyright policy for Springer, as listed on SHERPA/RoMEO, is that one can post a pre-review version to the arXiv but one must wait a year after publication before posting an post-review copy to any open repository (and one can never post the final publisher's copy):

This seems to precluding posting a post-review update to the arXiv until a year after the journal article is published. Wiley appears to have a similar policy.

To me this policy seems crazy, because it means that if you actually obey it, you cannot post a revised version to the arXiv for over a year -- and thus you are obliged to leave uncorrected any mistakes that are uncovered during the review process for a protracted period of time. That's bad scholarship at best. I don't see how anyone could comply with this policy in good faith.

It also raises a major issue for peer review. Why one should review for free for a journal that won't let the author share the results of your review with the community in as timely a fashion as possible?

Moreover, I don't see how this policy could possibly be enforceable, due to the timing of the copyright transfer agreement. The author does not transfer the copyright until after submitting the final revised version to the publisher. I am no lawyer, but it seems to me that the publisher has no copyright claim over the post-revision version of the manuscript until the author has actually returned the signed copyright transfer agreement. As best as I can tell, this leaves a generous time window during which the author can freely submit a post-review version of the manuscript to the arXiv without committing any kind of copyright violation whatsoever. The only option open to the publisher would be to refuse to publish the paper in retaliation -- which they are extremely unlikely to do.

So my question is simply this: Am I missing something here? Is there any way that such a policy could be legally enforceable if one posts the post-review version prior to signing the copyright transfer agreement?

Answer 1

The copyright agreement does not require that you leave your mistakes uncorrected, it simply requires you to make corrections in a particular way. The simplest method, if you discover mistakes in the published version, is to distribute some note of correction that specifically addresses your original error, which can be done without violating the copyright agreement. The copyright agreement may allow you to post post-review versions of the paper, since the agreement may contain a clause that "Prior versions of the Contribution published on non-commercial pre-print servers like ArXiv/CoRR and HAL can remain on these servers and/or can be updated with Author’s accepted version". There is always a clause where the author warranties that the work has not been previously published (which includes online distribution via ArXiv), and this is why they need to expressly say that you are also permitted to post the submitted version.

There are two notions of "enforceability" relevant to your agreement with the publisher. The stronger one involves litigation, where the publisher sues you for damages (when you breach a contract). You should hire a Swiss lawyer to get advice on whether Springer is likely to prevail in court. The other notion is "having negative consequences". A simple negative consequence would be that Springer refuses to publish any more of your work, if you flagrantly violate the terms of the agreement. Whether or not your breach involves copyright violation depends on whether or not you give them a license to publish, versus transfer copyright. (In interpreting the Lecture Notes in CS agreement, you would want to consult the Swiss attorney for a precise interpretation of granting and assigning the exclusive, sole right to copy).

Your comment about the review process is tangential, and suggests that you are unaware of review protocol, You ask "Why one should review for free for a journal that won't let the author share the results of your review with the community in as timely a fashion as possible". Reviews are not only anonymous, but also privileged communication between the reviewer and the editor (often -- though not always -- shared verbatim with the author). So you should not distribute reviewer comments, unless that is expressly permitted by the journal.

Answer 2

Springer (copyright transfer form) actually says (my emphasis):

"Authors may self-archive the author’s accepted manuscript of their articles on their own websites. Authors may also deposit this version of the article in any repository, provided it is only made publicly available 12 months after official publication or later. He/ she may not use the publisher's version (the final article), which is posted on SpringerLink and other Springer websites, for the purpose of self-archiving or deposit. Furthermore, the author may only post his/her version provided acknowledgement is given to the original source of publication and a link is inserted to the published article on Springer's website. The link must be provided by inserting the DOI number of the article in the following sentence: “The final publication is available at Springer via http://dx.doi.org/[insert DOI]”."

The only restrictions are on the accepted version and the published version. Pre-prints and revisions prior to acceptance are not precluded. However, links to the Springer website/doi should be provided on publication. See: http://www.springer.com/gp/open-access/authors-rights/self-archiving-policy/2124

Answer 3

Note that it is untrue to say that: "you are obliged to leave uncorrected any mistakes that are uncovered during the review process for a protracted period of time". The corrected version appears in the journal. Just update the arxiv paper with a link to the journal paper, stating that that is the corrected version. And you can update the preprint server with corrections anyway: you just can't breach your publisher's copyright agreement. If necessary, find a second way to phrase the correction, or if that's too onerous, add a note saying that corrections are forthcoming in {this journal}. But all this seems by-the-by, as no one's obliging you to use this publisher: I'm sure any number of open-access publishers will be happy to take your cash in exchange for very few restrictions.

You ask whether this agreement is legally enforceable. It doesn't matter. When someone breaches the agreement they have made with a publisher, they've shown that they are untrustworthy. The route you've identified, of someone deliberately breaching an embargo that they know they are going to sign up to, would be an act of bad faith that would demonstrate that they are untrustworthy.

Academia is built on trust relationships. So if anyone was considering reneging on an agreement, they should first give careful consideration to all their other current agreements and all their future possible agreements, with media, academia, voluntary sector, industry, and government.

Would a publisher pull a paper if the embargo had been breached? Well, they're completely within their moral and legal rights to do so. And consider the business case: if the one thing that they were going to get out of the deal was exclusive distribution of the paper for a year, and someone took that one thing away, there's nothing left for them in the deal.

Note that there are lots of publishing models out there. If you don't like one, and your funder doesn't oblige you to use it, then don't use it. There's a market there: it's pointless to to try to coerce everyone to follow one publishing model, regardless of how fashionable or ideologically pure that publishing model is.

Answer 4

I'll give a more general answer to your question:

"Copyright", or rather, the criminalization of making copies, has been a very problematic social institution since its inception. Quoting Wikipedia:

The origin of copyright law in most European countries lies in efforts by the church and governments to regulate and control the output of printers Before the invention of the printing press, a writing, once created, could only be physically multiplied by the highly laborious and error-prone process of manual copying by scribes... Printing allowed for multiple exact copies of a work, leading to a more rapid and widespread circulation of ideas and information (see print culture). Pope Alexander VI issued a bull in 1501 against the unlicensed printing of books and in 1559 the Index Expurgatorius, or List of Prohibited Books, was issued for the first time.

later on Copyright was tied to the commodification of written text in the nascent European Capitalism (I'll refrain from more quoting; see here and here about the Statute of Anne). The point (in my opinion) is that copyright is about reinforcement of oppressive and/or exploitative social power held by the privileged few. So it's not just this policy that seems crazy, it's that Copyright is fundamentally "crazy" - especially when it concerns cultural and scientific works.

We should really strive to break the yoke of publishers like Springer and Elsevier - and whatever nation-state/international support they have - so that they cannot restrict our socially-useful work to more easily line their pockets. They should not have exclusive rights of any kind on our work, and would merely be providing the service of publishing, distribution and online storage/access. No more than that.

This answer is not the right place to list and compare possible courses of action to achieve this, but you have indeed hinted at one: We should begin to break their one-sided agreements en masse, so that it would be useless to possibly go after individual breaches, or single-out "copyright dissidents" by refusing to publish their work etc. Or at the single conference/journal-issue level - if all authors refuse to sign the copyright transfers and the organizers/editors threaten to leave Elsevier/Springer if they don't accept an oral, implied, good-faith common-sense agreement with authors - they can forget about that journal or conference.

Answer 5

Yes you are missing something: it you sign (or intend to sign) the copyright transfer form, you engage not to do certain activities, incl. putting the paper online.

If you have already done this, then you cannot sign the form - plain and simple, as you can never comply with what you are signing; you have already broken the rules.

There is nothing you can do about this, and to many people it is not a problem. Noone forces you to publish with Springer or the others, but if you choose to do so, you effectively give them the right to make money by selling the pdf or journal for 1 year, and of course they ask you not to give it for free. If you dont like that, you can pay then the open-access fee 500-1000$ and you remove all these restrictions. Or you just put the paper on Archiv and forget about Springer. Or you make it into a pamphlet and sell it youself if you don't agree that Springer should make money on your back.

Answer 6

Without looking at the legal situation:

If you work together with the journal/reviewers on making the paper better, the journal contributed by using their reputation to find a reviewer and the reviewers contributed by using their time. The result (and thus the copyright) is not your result any more but the result of a common work, so you need to keep to the intended terms of this common work. (If you don't like the terms of working together, then don't work together).