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Re: BioOne Releases New Model Publication Agreement

This model agreement indeed incorporates many of the provisions advocated in the various author addenda, although it does require the author not to distribute or allow authors to distribute the article for six months after first publication in the journal in which it appears (with some exceptions for the author's personal web page and immediate limited uses for teaching and research activities).

What I find most interesting is that it asks for transfer of an exclusive right only for first publication in the journal; everything else is handled under a non-exclusive license. This arrangement may work for societies, and for subsidized operations like BioOne, where there is no special need to recover costs the publisher incurs and where the mission is to maximize distribution irrespective of any need to recover costs.

But for publishers like university presses, and of course commercial publishers, an exclusive right only to first publication will provide no legal means for protecting the investment against any pirate that chooses to take the articles and republish them in any other arrangement than just the one used for the original journal issue (which is protected by the publisher's copyright in the work as a collective work).

A nonexclusive right gives the holder no standing to sue for infringement. The publisher has a stake in protecting the investment that no individual contributor does; in fact, the individual contributor will benefit from wider distribution. Thus only the publisher has a motivation to sue but, without an exclusive right in more than first publication, could not do so.

Also, while the six-month delay may work for science journals, it is unlikely to be sufficient to save journals in the humanities and social sciences from subscription cancellations as few libraries (maybe aside from ARL members) would consider that delay any huge cost to pay in terms of slowing scholarly communication. Heck, these articles sometimes take a year or two to get through the review process, so what is the problem with waiting another six months, I could hear many librarians asking, if it means we can save money on subscribing?

So, while I applaud BioOne for taking this progressive move, let it be understood that its provisions apply to the special nature of the journals that BioOne publishes and of the subsidization that occurs in this sector of publishing, which does not exist for university presses, at least for journals (presses are subsidized primarily because they lose money publishing books; few, if any, presses lose money publishing journals), and certainly not for commercial publishers.

Sandy Thatcher
Penn State Press

P.S. For an elaboration of this comment and more on the author's addendum, see my forthcoming article on this topic in Against the Grain.

FOR IMMEDIATE RELEASE - April 7, 2008

BioOne Releases New Model Publication Agreement

BioOne (www.bioone.org) is pleased to announce the release of a model publication agreement that addresses current trends in copyright assignment and requirements by NIH and other funding agencies for digital repository deposits. While the Agreement was developed at the request of several BioOne publishers, it may be of interest to any scholarly publishing organization that is seeking a clear, concise, and legally vetted publication agreement.

In March 2007, the legal firm Morrison & Foerster LLC (www.mofo.com) generously agreed to provide pro bono legal assistance to BioOne in drafting a Model Publication Agreement. Ms. Pamela Pasti, Of Counsel in the Technology Transactions Group of Morrison & Foerster's San Francisco office, was assigned to the project. Over the course of the following year, Ms. Pasti worked with BioOne to review existing publication agreements, notable author's addenda, and articles describing emerging trends in copyright law as it relates to academic publishing.

The resulting agreement allows author(s) to retain copyright, while granting the publisher both a temporally limited and exclusive right to first publish, and a perpetual, non-exclusive right to publish, distribute, and sublicense. In response to NIH=92s Public Access Policy (passed by Congress in December 2007) and other institutional and subject repository deposit mandates, the Agreement allows authors to deposit their work in digital repositories directly, or permits the publisher to deposit to the National Library of Medicine on their behalf.

"The BioOne Model Author Agreement reflects over a year of work for all involved in this important project," said Mark Kurtz, BioOne Director of Business Development. "From the onset, we felt strongly that BioOne was in a unique position as a collaborative publishing endeavor to draft an equitable agreement. Still, this project would not have been possible without the legal guidance of Morrison & Foerster, and the invaluable feedback garnered from the publisher and library community."

The final Agreement is freely available on the BioOne website at:

www.bioone.org

An accompanying 'roadmap' is also available to provide publishers adopting the Agreement with guidance on specific author and publisher rights and amendable sections.

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