Sunday, January 24, 2016

Moral Rights, MRK II

I received some great news the other day. BC Studies has a revised author's publication agreement that no longer includes a moral rights clause. Progress is possible!
The celebration was short lived.
Truth is the revised clause is arguably worse than the original one.
  • The original clause: "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."
  • The replacement clause: "Before and after publication the Journal has the right, at its sole discretion, to edit, translate and reformat the Work, including the right to digest, abridge, adapt, index, add to, delete from, alter and/or otherwise combine the Work with other content in any manner and in any media whatsoever." [emphasis added]
The replacement clause is, at least, specific in detailing the rights that the author gives up. That said it expressly and explicitly requires the author to hand over all discretionary rights and enables the journal to essentially do what ever it wishes with the author's work without having to consult with the author, ask the author's permission, or consider the author's interests in any way shape or form.
Hubert Lai (UBC Legal Counsel) patiently explained to me that: "Without an express waiver of such moral rights, UBC's journals could therefore face the risk of possible legal claims for infringement of an author's moral rights.  For example, such claims could be alleged to arise from a journal's:
  • ordinary editing of the author's (or authors') manuscript for publication 
  • reformatting of the published work for publication in other media; or
  • digesting or prĂ©cising of the work for an index or for archival purposes.
Furthermore, it is also possible that an author's moral rights could be asserted to inhibit a journal's ability to publish a formal correction or retraction in connection with a previously published work. This could be of particular concern in cases where the published work has more than one author.
 No academic author is seriously concerned about a journal being able to carry out normal editorial decisions and practices. Copy editing, correcting errors, digesting for index or archival purposes are are reasonable expectations on the part of a journal.  However, the replacement clause created by UBC Legal Counsel goes way beyond that normative model.  The replacement clause in fact is makes no material difference for an author, except to make very clear that UBC is more interested in taking proprietorial control over an author's work and to grab all of the legal rights they need to act with impunity and without care or attention to an author's interest.

What a way to support academic freedom.

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