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White Paper — Open Science in a Digital Republic

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Scientific and Technical Information Department - CNRS

Overview: “science in transition”

The risks of misappropriation

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1The appropriation of scientific data and results can be legitimate if it responds to legitimate interests of exploitation, preservation of secrets or respect of privacy. On the other hand, when it responds to private interests, to the detriment of science, even more so when it concerns results from public research, it becomes misappropriation.

2This misuse can occur in:

  • the choice of the economic model of scientific publishing;

  • the abuse of intellectual property rights;

  • contractual practices.

Appropriation by economic uses

3The hybrid Gold model, which some consider as transitional, allows free access to scientific publications subject to the payment of “article processing charges” and thus represents an initial source of appropriation.

4The scientific publishing market is divided into two groups between which a gap is widening irreversibly: the “majors” (Elsevier, Springer, Nature), which are growing faster than the market by capturing the publishing activities of learned societies, have been able to grow their catalogues far more quickly than smaller academic and commercial publishers.

  • 1 Information extracted from the study by the DIST-CNRS, L’Edition de sciences à l’heure numérique : (...)

5In addition, the scientific publishing sector is a place of imperfect competition where price competition is inexistent since the journals are not mutually substitutable. This explains the very high margin rates of the major publishers and the unilateral and uncompetitive setting of the amounts of the subscriptions and “article processing charges”.1

Appropriation by the uses of scientific publishing

6The right to intellectual property applied to scientific data in fact leads to privatisation of knowledge to the publishers’ benefit, which has the effect of:

  • erecting legal and financial barriers to access to scientific and technical information;

  • slowing down scientific research and progress;

  • prompting concentrations of scientific information and research themes, financed at least 50% by public funds, in the hands of private publishers.

7Publishers exploit the publishing of scientific articles and make significant profits, while:

  • the costs of digital publishing are lower than the costs of the print edition;

  • neither the authors, the editorial board nor the peer-reviewers are paid by the publishers; often the authors even have to pay “article processing charges” and the organisations have to pay their subscriptions.

8Publishers’ profits have never been higher than they are today. The global market for scientific research publishing is estimated to be worth €12.8 billion. Digital services account for 60% of the revenue on average. Among the major publishers, which invested in digital technologies and the platform strategy early on, this ratio is 75%.

9The conditions under which researchers can reuse their own articles are highly restrictive or even non-existent, as in the vast majority of cases the authors have transferred their rights on an exclusive basis by means of true adhesion contracts.

Appropriation by contracts

The scientific publishing contract

10Nominate contract. Authors of scientific texts can, through a publishing contract, transfer “under specified conditions to a person referred to as the publisher the right to manufacture or have manufactured a number of copies of the work, this being for the latter to ensure publication and dissemination thereof”.2

11This is a nominate contract governed by Articles L.132-1 to L.132-17 of the Intellectual Property Code (CPI), which places major obligations on the publisher, including:

  • a duty to publish: in the absence of publication, the contract will be terminated (Article L. 132-17 CPI);

  • continuous and sustained exploitation: Article L.132-12 of the CPI imposes on the publisher the requirement to ensure the permanent availability of the work, and therefore to make automatic reprints, and to make or have made popular editions;

  • accountability: Article 132-13 specifies that “the publisher shall be required to render accounts”.

12Publishing implies a transfer of rights from authors to their publishers, and this transfer of rights, with the assigned objective, is the element that characterises publishing contracts compared to other contracts for the transfer of intellectual property rights.

13Article L.132-8 of the Intellectual Property Code stipulates that “the author shall guarantee the publisher the undisturbed and, unless otherwise agreed, exclusive exercise of the right assigned”.

14Remuneration. The transfer of rights in favour of the publisher is exchanged for proportional remuneration. In principle, therefore, the law provides for the remuneration of authors in proportion “to revenue” or “to the products of exploitation”. In other words, in order to protect authors and allow them to participate in the success of their work, Article L. 132-5 of the Code provides for remuneration of authors proportional to the proceeds of exploitation of their work, which includes not only publishing, but also the right of representation, translation or adaptation of their work.

15By the rule of proportionate interest, the legislation is intended to protect authors against any transfer of exploitation rights agreed by them for an amount that is very small in relation to the profits made by the publisher. By way of derogation, remuneration in the form of a lump sum may be provided for in the cases listed exhaustively in Articles L. 131-4 and L. 132-6 of the CPI.

16Authors may, however, contractually waive remuneration that is proportional to the exploitation of their work. Indeed, Article L. 122-7 of the CPI relating to the transfer of the right of reproduction of a work stipulates that such a transfer may be without payment. For this, a clause on transfer of the right of reproduction free of charge must be formally stipulated in the publishing contract.

  • 3 Dalloz Action, Droit d’auteur (Copyright), Chapter 112 – “Transmission, transfer and contracts rela (...)

17Violation of the provisions relating to remuneration is sanctioned by relative nullity whose action shall lapse after five years, a period that runs from the date of signature of the contract.3

18Adhesion contract. By transferring to the publisher their exclusive property rights over the article, author-researchers can no longer exploit their articles, share them or self-archive them, even if this is free of charge and for the benefit of the scientific community. In the majority of cases, the signed contract is a veritable adhesion contract providing for an exclusive transfer of rights and is not accompanied by any remuneration. These contracts could be revised in light of the provisions of the Intellectual Property Code.

19It would be interesting to return to a regime providing more protection to authors, authorising author-researchers to share their articles without any limits, including contractual ones, in the name of:

  • the best interests of science;

  • the financing by public funds of the research that led to the writing of the article.

20This system enabling author-researchers to freely share their publications should not penalise the world of scientific publishing; arrangements can be found in particular by defining embargo periods.

Publishing contracts signed by researchers for articles they wrote in the framework of publicly funded research largely provide for exclusive transfers of rights in favour of the publisher.
These are true adhesion contracts.
Publishing contracts that do not state formally that the rights are transferred free of charge shall be subject to nullity.

The contract for the subscription to the publisher’s platform

21Terms and conditions of use or subscription. The terms and conditions of use as well as the subscription contracts with publishers lay down the conditions under which the articles and services accessible from the platforms can be used. These contracts generally provide for limited conditions of use of the articles:

  • access to the full text, printing or downloading for the subscriber’s sole use;

  • inability to conduct searches of articles outside the platform.

22For example, the general terms and conditions of use of Elsevier Masson, available on its website, stipulate in the article on intellectual property:

  • 6.1 Copyright and other intellectual property rights to all Elsevier proposals, publications and other Products and or Services shall remain with Elsevier unless agreed otherwise in writing. The rights granted by Elsevier are restricted to use solely by the Client and may not be assigned, transferred or sub-licensed without the prior written permission of Elsevier. The rights granted by Elsevier are non-exclusive and for the purpose expressly agreed upon. Any other use shall require the prior written permission of Elsevier. The Client shall not acquire any intellectual property rights in the Products.

  • 6.2 No part of the Elsevier proposals, publications or Products may be stored in any automated data file and/or reproduced, whether electronically, mechanically, by photocopying, recording or in any other manner or form, without the specific prior written permission of Elsevier.”

23User-generated content. Aware of the need to propose information-processing services to their subscribers (cross-referencing, semantic and lexicographical analysis, automatic synthesis, translation, etc.), publishers have developed value-added services that are available from their platforms.

24For example, Elsevier offers a TDM licence contract via its API:

  • limiting the use of the API to non-commercial purposes;

  • limiting the exploration of results from using the API on datasets, the “user-generated content”, to:

    • the placing online of bibliographic data accompanied by a DOI link leading to the full-text article;

    • the addition of a proprietary notice;

  • prohibiting:

    • the use of an extract of more than 200 characters from the full text;

    • the modification, translation, or creation of derivative work based on the datasets;

    • the reproduction, retaining or redistribution of the datasets;

    • the extraction or use of the datasets for any commercial activity;

    • the use of robots or other automated programmes, or algorithms for searching;

    • the use of the output generated by the API to enhance institutional repositories in a way that would compete with the final peer-review journal article.

25The ownership of the user-generated content is not clearly stated by the publisher, but by licensing rights over the “TDM output”, the publisher assumes that it is the holder.

26This appropriation by private publishers of publicly funded science calls for legislation in favour of researchers’ rights:

  • on free access to the data and results of research;

  • on free exploration of the data and results of research.

27In order to respond to the needs of researchers in light of the science macro-environment, Part 2 offers an approach and legal solutions in favour of Open Science.

Notes

1 Information extracted from the study by the DIST-CNRS, L’Edition de sciences à l’heure numérique : dynamiques en cours (Publishing of science in the digital age: Dynamics in progress), 2015.

2 CPI Art L132-1

3 Dalloz Action, Droit d’auteur (Copyright), Chapter 112 – “Transmission, transfer and contracts relating to copyright”, André R. Bertrand, 2010.

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