Restrictive license clauses

["John Cox" <John.E.Cox@btinternet.com>]

This statement of principles is unexceptionable.  It is fully consistent
with the much narrower issue that I originally addressed in response to Ms
Carraway's posting about the provision in some (most?) licences reserving
the publisher's right to withdraw an article from an online journal or
database if it were to be unlawful (breach of copyright, obscene,
libelous, or otherwise "objectionable".  And it appears to cover Don
Water's broader remarks about public policy and the scholarly record.

Fortunately, the occasions on which a publisher withdraws an article for
such legal reasons are rare.  Licences - i.e. legally enforceable
contracts - contain many terms (including this one) that become relevant
only when something goes wrong.  The majority of the text of most legal
agreements is concerned with failure of one sort or another.  The reason
why those provisions are there is simply to define the process to be
followed when such events do occur.  If they are omitted, all that happens
is that the way is opened up to unnecessary litigation.

John Cox

John Cox
Managing Director
John Cox Associates Ltd
United Kingdom
Tel: +44 (0) 1327 860949
Fax: +44 (0) 1327 861184
E-mail: John.E.Cox@btinternet.com 
Web: www.johncoxassociates.com 

-----Original Message-----
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Anthony Watkinson
Sent: 21 June 2005 22:51
To: liblicense-l@lists.yale.edu
Subject: Re: restrictive license clause

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