Critics have said that the copyright transfer agreement in commercial scholarly publishing is "as much about ensuring long–term asset management as it is about providing service to the academic community" because the practice seems to grant favor to the publisher in a way that does not obviously benefit the authors. Copyright transfer agreements often conflict with
self-archiving practices or appear to do so due to ambiguous language. In 2017, the 9th Circuit Court of Appeals in
Johnson v. Storix upheld a copyright transfer involving no written assignment. In that case, the Author, Anthony Johnson, sold software as a sole proprietor and incorporated his company in 2003 as Storix, Inc. The court upheld a jury decision that Johnson transferred the copyright to the corporation upon its formation based on an annual report he wrote and signed stating that he had transferred "all assets" from his sole proprietorship. The jury rejected Johnson's claim he intended only to transfer the license to sell the software, and further decided that Johnson became a work for hire upon forming the corporation, thereby also forfeiting all rights to his derivative works. This is the first case in which a document, not itself a contract or agreement and containing no reference to the copyrights, was considered a "note or memorandum" of copyright transfer, and the first time a sole owner of a company was designated a work for hire for copyright ownership purposes. This serves as a lesson that a "writing" required by the Copyright Act need not necessarily be "clear", but may contain ambiguous language which can be interpreted by course of dealing by third parties to the alleged transaction.
Prevalence of copyright assignment to publishers Traditional methods of scholarly publishing require complete and exclusive
copyright transfer from authors to the
publisher, typically as a precondition for publication. This process transfers control and ownership over dissemination and reproduction from authors as creators to publishers as disseminators, with the latter then able to monetise the process. The transfer and ownership of copyright represents a delicate tension between protecting the rights of authors, and the interests – financial as well as reputational – of publishers and institutes. With
OA publishing, typically authors retain copyright to their work, and articles and other outputs are granted a variety of licenses depending on the type. The timing of the process of rights transfer is in itself problematic for several reasons. Firstly, copyright transfer usually being conditional for publication means that it is rarely freely transferred or acquired without pressure. Secondly, it becomes very difficult for an author to not sign a copyright transfer agreement, due to the association of publication with career progression (
publish or perish/publication pressure), and the time potentially wasted should the review and publication process have to be started afresh. There are power dynamics at play that do not benefit authors, and instead often compromise certain academic freedoms. This might in part explain why authors in scientific research, in contrast to all other industries where original creators get honoraria or royalties, typically do not receive any payments from publishers at all. It also explains why many authors seem to continue to sign away their rights while simultaneously disagreeing with the rationale behind doing so. It remains unclear if such copyright transfer is generally permissible.
Research funders or institutes, public museums or art galleries might have over-ruling policies that state that copyright over research, content, intellectual property, employs or funds is not allowed to be transferred to third parties, commercial or otherwise. Usually a single author is signing on behalf of all authors, perhaps without their awareness or permission. and for which a steep learning curve for librarians and researchers exists. Thus, in many cases, authors might not even have the legal rights to transfer full rights to publishers, or agreements have been amended to make full texts available on repositories or archives, regardless of the subsequent publishing contract. This amounts to a fundamental discord between the purpose of
copyright (i.e., to grant full choice to an author/creator over dissemination of works) and the application of it, because authors lose these rights during copyright transfer. Such fundamental conceptual violations are emphasised by the popular use of sites such as
ResearchGate and
Sci-Hub for illicit file sharing by academics and the wider public. Factually, widespread, unrestricted sharing helps to advance science faster than paywalled articles, thus it can be argued that copyright transfer does a fundamental disservice to the entire research enterprise. It is also highly counter-intuitive when learned societies such as the
American Psychological Association actively monitor and remove copyrighted content they publish on behalf of authors, as this is seen as not being in the best interests of either authors or the reusability of published research and a sign of the system of copyright transfer being counterproductive (because original creators lose all control over, and rights to, their own works). Some commercial publishers, such as
Elsevier, engage in "
nominal copyright" where they require full and exclusive rights transfer from authors to the publisher for OA articles, while the copyright in name stays with the authors. The assumption that this practice is a condition for publication is misleading, since even works that are in the public domain can be repurposed, printed, and disseminated by publishers. Authors can instead grant a simple non-exclusive license to publish that fulfils the same criteria. However, according to a survey from
Taylor and Francis in 2013, almost half of researchers surveyed answered that they would still be content with copyright transfer for OA articles. Therefore, critics argue Researchers failed to find proof that copyright transfer is required for publication, or any case where a publisher has exercised copyright in the best interest of the authors. While one argument of publishers in favor of copyright transfer might be that it enables them to defend authors against any copyright infringements, publishers can take on this responsibility even when copyright stays with the author, as is the policy of the Royal Society. == Other models ==