Saturday, September 5, 2015

Moral Rights - who cares? We all should!

1.2 The Author hereby also expressly waives, to the fullest extent permitted by law, all moral rights which the Author may now or in the future have, with respect to the Work.

I recently discovered that the above clause is standard for BC Studies (BCS), a regional journal of venerable reputation published by UBC.  The publishing agreement is one of the most restrictive that I have encountered over 25 years of academic publishing.  As an academic I am accustomed to signing away most economic rights attached to my writing. While there are academics who cash in big on their writing most of us benefit most through the simple act of publication: it’s what we are paid to do by our universities; it’s what we need to do to get tenure and to be promoted.  So, we often forego any potential economic rights in our work as the benefit is found through secure employment.

Moral rights, however, are a horse of a different colour.

Moral rights speak to an author’s ability to maintain the integrity of their work. Moral rights ensure proper attribution.  By extension moral rights are fundamental for the maintenance of one’s intellectual property rights.  If we sign away our moral rights we give up all capacity to control our work.  Giving up our moral rights is tantamount to giving up our identity as a researcher and author. So why does UBC legal counsel want us to do this?

As an author I think carefully about the way I piece a work together.  I won’t claim perfection, but I will claim forethought and consideration.  An academic’s reputation rides upon the way in which one expresses oneself. If I lose my ability to control the integrity, the ordering and shape of my work, then I have lost a critical aspect of control over the way in which my academic reputation is shaped. 

If one loses the ability to control the integrity of one’s work there is always the option of taking our name off the piece; to give up attribution.  But if one signs away moral rights one gives up the ability to take our name off a work. 

Consider the following.  Eager to get a work published we have thrown caution to the wind and have signed away our moral rights.  Then, one chances upon said work, recoils in horror with the hatchet job of a reedit. We call up the editor and demand to have our work returned to its original state or at least to take our name off the the work.  But whoops, by signing away moral rights the author has also signed away their rights to control attribution.  There is no legal remedy!

According to BCS the publishing agreement they use was designed by UBC Legal Counsel. Allegedly, the university’s lawyers were quite insistent that authors sign away their moral rights.  The clause (posted above) is quite encompassing and pretty well ensures that there is not a shred of moral rights left in the hands of an author. Why?  It doesn’t really make any sense to me.  All it looks like is an attempt to undermine by intellectual property rights of potential authors.  When I asked for an explanation for the inclusion of the clause there did not appear to be any clear understanding of whyUBC legal counsel wanted it.

I really have no clear understanding of why UBC might want to take the moral rights from authors in publications that they control?  Perhaps it allows UBC to modify, alter, and repackage the work of authors without the hassle of having to secure said author’s permission. Thus UBC could keep our name on a work while fundamentally altering the integrity of the piece, perhaps to use in online course, without ever having to let us know. But really, why would they want to?  Is there really an money to be made by cutting up an obscure academic paper on abalone, forestry, of fisheries? It seems misplaced and of no real consequence for anyone but the author. nI wasn't involved in setting up the agreement and I'm no lawyer, so I have no idea what they really were thinking: but clearly, they weren't thinking about protecting authors' rights.

This clause is of no small consequence.  

Recently, upon receiving the happy news that one of my papers had been accepted by BCS my momentary joy was dashed to pieces by the subsequent receipt of the publishing agreement. I was very surprised.  I was also disappointed.  Despite all the work that had been involved in getting to the state of acceptance I was in no mind to give away moral rights. Some scholars may feel unable to protest the moral rights clause for fear of losing BCS’ offer of publication. Others may well be so pleased with the opportunity that they didn’t stop to consider the implications of the clause. I protested. In fact I also approached other journals to see whether they too had moral rights clauses in the event UBC was intransigent.  

UBC legal eventually waived the clause for me (thank you BCS staff for asking UBC on my behalf). They provided no explanation for granting the exemption nor did they explain why they put the clause into the agreement in the first place. It is not reasonable to merely grant one author who complains an exemption.  UBC needs to remove the clause completely from all past and future publishing agreements.

The right thing to do is to delete the clause on moral rights. 

"It's up to you," UBC legal, do the right thing.

1 comment:

  1. Letter sent to UBC Legal Counsel, Sept. 7, 2015.

    Dear Mr Lai,

    I write to request the removal of the moral rights clause from the publishing agreement BC Studies asks it authors to sign. If you are unable at this moment to withdraw the clause, I would at the least request an explanation as to why it is important for the university to insist upon it.

    The Moral Rights clause, "1.2 The Author hereby also expressly waives, to the fullest extent permitted by law, all moral rights which the Author may now or in the future have, with respect to the Work,” is rather expansive in its reach. This clause came to my attention recently upon having an article accepted for publication by BC Studies. Allow me to say that when I received the agreement I was rather taken aback. As an academic I am accustomed to having my economic rights stripped for the privilege of publication. However, this was the first time in 25 years of academic publishing that I was ever expected to sign away moral rights. As an author moral rights are critical as they protect the integrity of my work and by signing away moral rights I lose my ability to ensure that my work remains as I envisioned and created it.

    I protested to BC Studies. BC Studies then contacted your office to request an exemption for me. The exemption was granted. Thank you for doing that.

    However, it seems insufficient.

    Retaining moral rights appears to be an undue and excessive intervention into the intellectual property rights of an author. As an academic author my stack and trade rests with my work, my publications and articles. If I must give up my ability to ensure the integrity of my work (in order to be published , which is just what signing away moral rights does, I also give up my capacity to control the basis of what makes or breaks my academic reputation.

    It is not clear to me why UBC would want to take away an author’s moral rights. Given the clearly problematic aspect of this for authors, and the lack of any clear explanation for the practice, I would urge that this clause be removed from the BC Studies agreement to publish and that UBC return moral rights to authors who have previously signed this agreement.


    Charles Menzies

    cc: BC Studies; Mark McLean, UBC Faculty Association, Pat Moore & Sue Rowey, Co-chairs, Dept. of Anthropology.