Re: restrictive license clause

["Anthony Watkinson" <anthony.watkinson@btopenworld.com>]

Encouraged by Don's thoughtful comments, I am attaching a document, which
I drew up with the assistance of Scott Plutchak and, as I remember, his
approval. It was presented to various publishing organisations with a view
to an agreement on best practice, which could be presented to IFLA but
somehow it has got stuck partly because (I suspect) that I have not chased
the relevant organisations. I would be interested to learn if it portrays
good practice as far as Don is concerned. I wholeheartedly agree that this
is an important issue. I have retained the headings to aid navigation even
if a little more space is taken up

____________

The Principles

It is a general principle of scholarly communication that the Editor of a
learned journal is solely and independently responsible for deciding which
of the articles submitted to the journal shall be published. In making
this decision the Editor is guided by the policies of the journal's
editorial board and constrained by such legal requirements as shall then
be in force regarding libel, copyright infringement and plagiarism.

An outcome of this principle is the importance of the scholarly archive as
a permanent, historic record of the transactions of scholarship. Articles
that have been published shall remain extant, exact and unaltered as far
as is possible. However, very occasionally circumstances may arise where
an article is published that must later be retracted or even removed. Such
actions must not be undertaken lightly and can only occur under
exceptional circumstances, such as:

* infringements of professional ethical codes, such as multiple
submission, bogus claims of authorship, plagiarism, fraudulent use of
data, or the like.  (See Article retraction)

* legal limitations upon the publisher, copyright holder or author(s) (See
Article removal)

* the identification of false or inaccurate data that, if acted upon,
would pose a serious health risk (See Article removal or replacement).

Each of these instances together with best practice to be observed by the
publisher is detailed below. The recommendations will obviously depend on
technology infrastructure of individual publishers. Key references to the
consensus reflected below are:

http://www.nlm.nih.gov/pubs/factsheets/errata.html and
http://www.icmje.org/#correct

Article Retraction by the Scholarly Community

The retraction of an article by its authors or the editor under the advice
of members of the scholarly community has long been an occasional feature
of the learned world. Standards for dealing with retractions have been
developed by a number of library and scholarly bodies and there is a
consensus among librarians all stakeholders about how these situations
should be handled.

* A retraction note titled "Retraction: [article title]" signed by the
authors and/or the editor is published in the paginated part of a
subsequent issue of the journal and listed in the contents list.

* In the electronic version, a link is made to the original article.

* A screen containing the retraction precedes the online article
 and it is to this screen that the link resolves; the reader can then
proceed to the article itself.

* The original article is retained unchanged save for a watermark on the
pdf indicating on each page that it is "retracted".

* The html version of the document is removed.

Article Removal

In an extremely limited number of cases, it may unfortunately be necessary
to remove an article from the online database. This will only occur where
the article is clearly defamatory, or infringes others' legal rights, or
where the article is, or the publisher has very good reasons to expect it
will be, the subject of a court order, or where the article, if acted
upon, might pose a serious health risk.

In these circumstances, while the metadata (title and authors) should be
retained, the text should be replaced with a screen indicating that the
article has been removed for legal reasons.

Article Replacement

In cases where the article, if acted upon, might pose a serious health
risk, the authors of the original article may wish to retract the flawed
original and replace it with a correct version. In these circumstances the
procedures for retraction should be followed with the difference that the
database retraction notice will publish a link to the corrected
re-published article and a history of the document.

Technical errors

These are mistakes in the text, which do not alter the meaning of the
article. These include major technical errors, such as a figure being
placed upside down, or a bibliographical error, such as a failure to spell
the name of an author. It is generally accepted that corrections in the
digital version of such mistakes is allowed, but each publisher is
encouraged to make sure that the way in which this classification is used
is carefully monitored.

Preservation of the original article

In all cases the official archive of the publisher should retain all
article versions, including retracted or otherwise removed articles. It is
crucial that trust in the authority of the electronic archive is
maintained. It is recognised that currently many publishers do not have a
trusted archive for their online content. It is also the case that many
libraries and other entities, planning under national or other schemes to
become official trusted archives, have yet to develop necessary policies
on how to handle the type of material described abobe in their archives.
In the circumstances we recommend that publishers find a transitional way
of holding the original articles and accompanying material until such
times as they have an archive, where their electronic content is archives
and preserved for posterity. It is also recommended that potential or
actual archives come up with policies intended to address the questions
raised in this document especially where access is concerned.

Status of these recommendations

These are interim recommendations of best practice. We are in a hybrid
environment where print versions of journal articles and electronic
versions exist side by side. Whereas there is a clear understanding of the
fact articles, which are corrected or retracted, can never be removed from
all print archives, there is as not yet in the digital environment fully
articulated standards that are crucial to scholarly communication in
general and the record of scholarship, preserved for posterity, in
particular. However there is some urgency in that increasingly publishers
are moving either to e-only journals or the electronic version is regarded
as the definitive or normative version.

Anthony Watkinson

----- Original Message -----
From: "Donald Waters" <DJW@mellon.org>
To: <liblicense-l@lists.yale.edu>
Sent: Friday, June 17, 2005 11:11 PM
Subject: RE: restrictive license clause

> The clause that Ms. Carraway quotes is not itself a problem but, as others
> have observed, it does point to the larger issue of "the vanishing article
> syndrome," which has been discussed previously on this list.  The syndrome
> cannot be addressed simply by deleting or altering the quoted clause,
> which seems to me to serve merely an informational purpose.  The clause is
> an honest and forthright admission of a publisher's legal obligation to
> withdraw an item from their database under pressure of a suit.  It is an
> admission of the very real vulnerability that publishers face on the
> question of preserving the integrity of the scholarly and cultural record,
> and it should serve as a clarion call for members of this list to
> undertake a concerted effort in licensing activity to address the problem.
> However, as I suggest below, the action needs to take place on a slightly
> different front from what Ms. Carraway's query initially suggests.
>
> The vanishing article syndrome may not be a new issue for publishers, but
> it is a relatively new and increasingly serious public policy issue for
> the academy, for libraries who serve the academy, and for the general
> public that claims to care about the integrity of the scholarly and
> cultural record in published form.  To ask rhetorically, as Mr. Cox does,
> who would want to persevere in providing access to offensive or unlawful
> content misses this big point, and begs the question of what is offensive
> or unlawful and to whom, and sets up a very slippery slope of risk
> assessment, in which material may be removed not only because it IS
> offensive or unlawful, but because it MAY be so in the judgment of
> risk-averse lawyers or staff.  And as Jim O'Donnell pointed out a couple
> of years ago when this topic was discussed on this list, it is a very
> short ride farther down the slippery slope for publishers, self-archiving
> authors, and others to alter or withdraw items simply because an idea is
> proven wrong, has drifted out of favor, or has simply proven to be
> embarrassing.
>
> The real and very serious threat of the vanishing article is a symptom --
> and unintended consequence -- of the massive ongoing shift from ownership
> to licensing in the distribution of scholarly publications. The shift
> means that libraries and the academy no longer physically control the
> scholarly record that is the necessary basis of teaching and research.
> That control is slipping to publishers, many of which are commercial
> organizations that have neither the mission nor the desire to assume
> responsibility for long-term preservation -- and those publishers that do
> have the desire need help from their library colleagues because, as the
> quoted clause indicates so clearly, publishers do not have the legal
> protections to sustain them in preservation for the long term. However,
> those libraries who do have a preservation mission and, under copyright
> law, special protections for preservation activities, now no longer have
> possession of the content.
>
> As a result, libraries and publishers who have forged a licensing regime
> that generally provides great value to the scholarly community, still have
> urgent work to do together to ensure that the integrity of the scholarly
> and cultural record can be appropriately shielded from attempts -- for
> good or bad reasons -- to "vanish" a publication.
>
> What could be done within the licensing regime to address the vanishing
> article syndrome?  Both libraries and publishers must act together, but
> because publishers are so vulnerable and libraries have both the mission
> and public trust to preserve the scholarly and cultural record, it is the
> libraries that must take the lead -- and soon.  Libraries can and must
> demand that, as a matter of contract, scholarly publications that are
> generally available by license are deposited immediately, diligently, and
> systematically in trusted third party archives.  Only if publications are
> moved outside of publisher's databases for archival purposes do we have a
> chance of protecting the integrity of the record against attempts at
> removal.  Libraries need to evaluate which form of archiving solution is
> suitable for which publications, and the demand must be real.  In other
> words, libraries must be willing to withhold payment until the publisher
> agrees to the deposit, and they need to help fund the archives.  There are
> archiving solutions, which include LOCKSS (http://lockss.stanford.edu/),
> Portico (http://www.portico.org/), and others, and there are emerging
> standards for identifying trusted archives
> (http://www.rlg.org/en/page.php?Page_ID=580).
>
> Through the licensing process, libraries and publishers have a central,
> active role to play in mitigating the dangers of the vanishing article
> syndrome, and in shaping how the cultural record is to be preserved.  It
> would be good to see those on this list frame the issue more sharply than
> I have been able to do in this brief posting, suggest and incorporate
> appropriate contractual clauses in their licenses, and thereby focus their
> minds, resources, and institutions upon this urgent preservation task.
>
> Don Waters