Actually it’s our copyfight, but my had a better ring to it.

Here’s the backstory. Lorri Mon, a friend and colleague, is the guest editor of a special issue of the journal The Reference Librarian, on topics around the future of reference and library education. Since I have a thing or two to say about those topics (as my students have heard ad nauseam), Lorri asked me to contribute a paper. I said, ok, how about a paper on liaison librarianship and how to teach it in the standard Reference course in ILS programs? I figured I could easily write 5000 words on that topic, since I have taught that standard Reference course many times, and have tried to integrate liaison librarianship into that course. And it was Lorri asking. So I said yes.

Fast-forward nine months or so. In the interim there somewhere, I had asked Diane Harvey, another friend and colleague, and the Head of the Instruction and Outreach Department for the Duke Libraries, who’s involved with their liaison librarianship program, to co-author the paper with me. Nine months or so later, the paper is written. We’ve submitted the paper to Lorri. It’s undergone blind peer review. We’ve made revisions based on the reviewers’ comments.

And here’s where the fun begins.

Lorri sends us the copyright form. Both Diane and I sit on it for a while, a few weeks, more out of laziness than anything. We were not intending to play chicken, as described here by Jason. After a few weeks of sitting on this form, Diane left me a voicemail asking me if I’d signed the form yet, and I left her a reply voicemail saying no. I also thought I should contact Lolly Gasaway, law professor extraordinaire and former instructor of my School’s copyright course… and who I have heard, from her very own mouth, ‘fess up to playing that game of chicken with publishers. Diane beat me to the punch though, and contacted Kevin Smith, Duke University’s Scholarly Communications Officer… and, incidentally, my hero.

I have to stop here briefly, to point out that the publisher of The Reference Librarian is Taylor & Francis. I had not even thought about who the publisher is, prior to agreeing to write this article… like a typical academic, I imagine. In academia, we’re acculturated to the mindset that the publication is the important thing, and the publisher is a means to that end. Journals, not publishers, have reputations and impact factors and whatnot, so that when we choose where to publish, “where” equals “in what journal.” We give little thought, generally, to the publisher behind the journal. Indeed, the publisher is largely invisible, or if it is visible, it’s only in the person of the journal editor, who doesn’t even work for the publisher. We all know that there’s a serials crisis, and about the open access movement, and all that. But when the rubber hits the road, we tend to think in terms of journals, and not in terms of publishers. I will never make that mistake again.

In response to Diane, Kevin replied that Taylor & Francis’ copyright agreement form is extremely confusing. See the form here. Note the following two issues. One: The copyright assignment agreement is on pages 2-3, but the author signs page 1, making it unlikely that the author will read the fine print on pages 2-3 closely. Two: The Schedule of Author’s Rights contains the actual terms that the author is agreeing to, but that Schedule is not included in this document, nor is a link to it provided. Kevin, of course, being a mensch, found it online… see it here.

Kevin also pointed out that, according to the Schedule of Author’s Rights: (1) The author transfers all rights to T&F, (2) T&F grants some rights back to the author, and (3) among these are (a) the right to post a preprint “on your own website, or on your institution’s intranet” (item 4 on the Schedule), and (b) the right to post a postprint, but not until “18 months after first publication” (item 6). Now, let us consider these rights. First of all, preprints are defined as “versions of the article created prior to peer review.” In other words, a draft. I would argue that a more common definition of preprint is the version of the article after peer review and revisions, but prior to copyediting and layout: what T&F defines as a post-print: “the Article in the form accepted for publication in a Taylor & Francis journal following the process of peer review.” (Though, to be fair, if I understood Kevin correctly, he disagrees with me on these definitions; he would define these terms as T&F does.) Second, I can’t post a post-print until a year and a half after the issue in which my article appears is published. Which means probably 2.5 years after it was accepted for publication, given how long the issue production process takes. Kevin pointed out that this 18-month restriction is unusual, and that the goal of it is pretty clearly to make author self-archiving difficult and, ultimately, irrelevant.

After this conversation between me, Diane, and Kevin, I emailed Lorri to ask if she could look into whether a change could be made to these policies. She did, and got an extremely unhelpful and unbudging response from a T&F representative (“we cannot change this section of our author rights policy”). I then replied to Lorri that Diane and I would not sign the T&F copyright agreement. I referred to the UNC Faculty Council Resolution on Faculty Ownership of Research. (I understand that Duke has a similar policy, but I don’t have a URL for it.) I offered to provide a revised author rights document that Diane & I would be willing to sign. And I apologized profusely to Lorri, for being a thorn in the side of her special issue. Lorri suggested that I write all those things to the regular journal editors (Rita Pellen & William Miller) and the T&F rep (Stacy Stanislaw), which I did.

And here, as a comic interlude, is where we had a “What we have here is a failure to communicate” moment. The response I got from Rita was: T&F will not publish the article without the copyright form signed by the authors, therefore we cannot include your article in the special issue. I replied, I wouldn’t expect T&F to publish the article without a copyright form signed by the authors. What I’m saying is that we won’t sign the form as is, but I’m offering to create an edited version of the form that we would be willing to sign. To her credit, Rita suggested that I send her an edited version of the form, and offered to submit it to T&F. This of course committed her & William to nothing, but was, from my point of view, a welcome show of solidarity.

So I created a revised version of the T&F copyright form. Because the original form was so confusing, my goal was to make it a single page: just the page that the author signs. I edited out all references to the “agreement attached” (that is, the copyright assignment agreement on pages 2-3), thus also eliminating all reference to the Schedule of Author’s Rights. I also removed the assignment of copyright to T&F, and replaced it with the right to publish, etc. — language which I lifted from the ALA’s copyright license agreement. My revised form is here… not that it matters, since T&F rejected my version.

The T&F rep Stacy replied to me a few days later that T&F “cannot accept your revised copyright form.” I assume that in the intervening few days, a fleet of lawyers had picked apart my watertight legal logic… though Stacy never mentioned who had decided that they could not accept my version. Instead, Stacy suggested that we sign T&F’s “License to Publish” form. What she said about that form was: “This form will allow you to retain copyright on your article. We would then consider you — the author — the rightsholder and list you as copyright holder at the top of the article.” One odd thing about this License form is that, apparently, only a T&F production manager can generate one, so it took a few days for one to get created for us. But here it is.

I have to stop again briefly here, to point out something very important. T&F has — had all along — a License to Publish form. Why had Stacy not mentioned this before? This email exchange had, by this time, been going on for a month. Let’s give Stacy the benefit of the doubt: let’s assume that she was not being malicious, but that she simply did not know about this License to Publish form until she ran my version by T&F’s lawyers. This is a very significant piece of information for the rep to a journal (almost certainly more than one journal) to not possess. Which means that this is a very significant oversight on the part of T&F, not keeping their journal reps informed. The result of which was that the rep to a journal was unprepared for a situation in which the author demands a less-restrictive copyright agreement. A situation which, I would like to believe, is not uncommon. Or perhaps this is a deliberate tactic by T&F? A tactic to put authors in the position of having to agree to a restrictive copyright agreement, because no one they could possibly have any contact with knows any different. Which brings me back to maliciousness.

As an aside, when Stacy first mentioned this License to Publish form, before a copy was generated for us, I did some searching. Turns out, Peter Suber had a post back in 2006 on T&F’s iOpenAccess program, which seems to have been the origin of their License form. So this License form has been around for 5 years. Plenty of time for Stacy to have learned of its existence. Also, plenty of time for it to have been integrated into the journal production process more cleanly, so we didn’t have to wait days for just the right T&F employee to create one.

The License form looked ok to me… the author retains copyright, and there’s no mention of an embargo period. But we ran it by Kevin Smith anyway, to get his reaction. And, of course, he demonstrated why I am not a lawyer. His reaction was that there is not much difference in the author’s position under the License agreement or the original Copyright Assignment agreement. The author retains copyright, but grants T&F an exclusive license to publish. By doing so, the author would need T&F’s permission to put the article in a repository. That permission is contained, you guessed it, in the Schedule of Author’s Rights, which is referred to in the License form. So there would still be an 18 month embargo for posting a post-print.

And so we come to the end of this saga. Diane and I spoke, and decided to withdraw our paper from the special issue. I wrote to the T&F rep Stacy, to drive the point home that all of this was on account of a too-restrictive copyright policy; and I wrote to Lorri to apologize profusely, again, and to promise her several drinks the next time we meet, for the hassle.

So now we have this paper on our hands. It was peer reviewed and revised. What to do with it? Diane & I discussed submitting it to another journal, but we decided that we’d had it up to here with publishers for the moment. And, of course, we don’t actually need to publish this article… need in 2 senses, actually. For one thing, I have tenure and Diane has continuing appointment, so neither of us need this publication for professional reasons. For another thing, if we want to put this article out there, we can just do it. We have the intertubes and we’re not afraid to use them.

And here’s where I get on my Open Access soapbox. What is the point of scholarly communication? I would argue that the most important function of scholarly communication is making scholarship (the input, e.g., data, datasets, etc.; and the output, e.g., articles, reports, etc.) publicly available. So that the scholarship can join The Great Conversation: so others can benefit from it, can react to it, can criticize it, etc. So scholarship, in all its forms, should be made public, though not necessarily published, at least in the traditional sense of the word. Of course, I’m not saying anything even remotely new with any of this.

And here’s where I realize that I am a very bad person. Because this whole saga has made me realize that there’s a possibility for a dirty trick here. One could, were one so inclined, submit an article for review to a journal, have it reviewed, make the revisions as recommended by the reviewers, then withdraw the article. This is of course what we did, but not by design. One could do this by design, and thereby address one of the persistent criticisms of scholarly publishing outside of the vehicle of the journal: the lack of peer review as a quality control mechanism. Plus it would still allow you to do whatever you want with your article, unbeholden to any publisher’s copyright agreement. Of course this is a total free-rider approach, and therefore unsustainable at scale: free-ridership as parasitism. But hell, the scholarly journal publishing industry is collapsing anyway, why not help it along?

So in the end, Diane & I decided to just make our article public. So here it is: here is a link to the article as a Google Doc. In fact, the Google Doc in which we wrote the article. I was thinking of setting up a WordPress instance and installing CommentPress, and putting this paper there, so that you, dear readers, could comment upon it and give it a round of post-print peer review. And maybe I will do that for future writing. But it seemed like overkill in this case.

Let me start my conclusion by saying that there’s a certain amount of irony to this whole soap opera. On the one hand, this is a tempest in a teapot: this paper is in no way worth the trouble that has surrounded it. It’s not even 5,000 words, and is hardly my magnum opus. (At the risk of speaking for my co-author Diane, it isn’t her magnum opus either.) I really don’t care all that much if it gets published or not. On the other hand, precisely because I don’t care if it gets published, it’s the perfect paper on which to take a principled stance. I can afford to take a principled stance, because I don’t care if I lose. Where “lose” is a word which here means, “don’t get the paper in the special issue.” Which, let’s face it, is losing the battle but winning the war.

It’s good to be tenured. Pre-tenure, I would have signed the copyright agreement and barely stopped to read it. If I did read it, I would have been annoyed and then signed it anyway. Now, I can afford to be an asshole take a principled stance and give the publisher a hard time over an unreasonable policy.

Now, let me really conclude by saying this: I hereby boycott all T&F journals. T&F publishes a fair number of journals in ILS (Journals by Subject > Information Science), and I shall not publish in any of them ever again. And, furthermore, I would encourage you, whether you are in ILS or not, to not publish in T&F journals either. Because, let’s face it, the only way publishers will change their restrictive copyright policies is if authors refuse to publish with those publishers. Give ’em hell.