What would happen if I placed my manuscripts in the Public Domain?
December 13, 2012
We know that most academic journals and edited volumes ask authors to sign a copyright transfer agreement before proceeding with publication. When this is done, the publisher becomes the owner of the paper; the author may retain some rights according to the grace or otherwise of the publisher.
Plenty of authors have rightly railed against this land-grab, which publishers have been quite unable to justify. On occasion we’ve found ways to avoid the transfer, including the excellent structured approach that is the SPARC Author Addendum and my tactic of transferring copyright to my wife.
Works produced by the U.S. Federal Government are not protected by copyright. For example, papers written by Bill Parker as part of his work at Petrified Forest National Park are in the public domain.
Journals know this, and have clauses in their copyright transfer agreements to deal with it. For example, Elsevier’s template agreement has a box to check that says “I am a US Government employee and there is no copyright to transfer”, and the publishing agreement itself reads as follows (emphasis added):
Assignment of publishing rights
I hereby assign to <Copyright owner> the copyright in the manuscript identified above (government authors not electing to transfer agree to assign a non-exclusive licence) and any supplemental tables, illustrations or other information submitted therewith that are intended for publication as part of or as a supplement to the manuscript (the “Article”) in all forms and media (whether now known or hereafter developed), throughout the world, in all languages, for the full term of copyright, effective when and if the article is accepted for publication.
So journals and publishers are already set up to deal with public domain works that have no copyright. And that made me wonder why this option should be restricted to U.S. Federal employees.
What would happen if I just unilaterally place my manuscript in the public domain before submitting it? (This is easy to do: you can use the Creative Commons CC0 tool.)
Once I’d done that, I would be unable to sign a copyright transfer agreement. Not merely unwilling — I wouldn’t need to argue with publishers, “Oh, I don’t want to sign that”. It would be simpler than this. It’s would just be “There is no copyright to transfer”.
What would publishers say?
What could they say?
“We only publish public-domain works if they were written by U.S. federal employees”?
Sauropod Vertebra Picture of the Week 
December 13, 2012 at 11:24 am
Tell me what happens.
December 13, 2012 at 11:25 am
Alternatively, can we add dummy authors who are agency friends of ours?
December 13, 2012 at 11:26 am
I’ve not done this yet — it only occurred to me yesterday. I’d like to hear from someone who has, though: surely the idea can’t be novel.
December 13, 2012 at 11:28 am
” What would happen if I just unilaterally place my manuscript in the public domain before submitting it? ”
Err, Mike, this happens all the time in physics – people put preprints on the ArXiV server before submitting them.
What happens? Nothing much. The journal publishes the paper in the normal way.
And the ‘open access’ issue is solved instantly, with no hassle, no upfront charge, and no overhaul of the system needed.
December 13, 2012 at 11:32 am
Ah, no, Paul. I guess I wasn’t clear here: I’m not using the term “public domain” in its sloppy sense of “available out there on some terms”, but in the precise technical sense of “permanently released from copyright”.
We know about arXiv, and love it — one of our own papers is there — but posting to arXiv is not a legal declaration, which is what we’re looking for here.
December 13, 2012 at 11:38 am
OK, sorry! Not sure why you’d want to do that though – is it to somehow challenge the publishers?
December 13, 2012 at 11:45 am
The idea is to make the final published version of the paper freely available, not just an unformatted and unpaginated preprint.
December 13, 2012 at 4:21 pm
Even if you release the original, unreviewed manuscript into the public domain prior to submission, wouldn’t the reviewed, revised version done under the auspices of the journal’s editorial system count as a new work? This too would then have to be released into the public domain, presumably. I’m just not sure. . .thoughts?
December 13, 2012 at 4:35 pm
I should clarify that I meant the revised version would be a new work under copyright of the author (not the publisher. . .although I’m sure they might try such shenanigans!). Thus, an infinite feedback loop, one that publishers would leverage to their advantage (rightfully so) but to the disadvantage of open access.
December 14, 2012 at 5:08 pm
I see some problems with this approach.
A creative commons public domain declaration does not cause copyright to cease to exist – in fact, as far as I know, there is no way to make copyright expire before its term. It merely freely licences the copyright without restriction. For most journals, doing this before you submit your mansucript will simply put you in breach of their conditions that say that you must assign or exclusively licence the copyright to them. If you publish the article before submission this likewise will breach the condition that most journals have that the article must not be pre-published. Therefore, you risk refusal of your paper.
Certainly under UK law, the typographical arrangement has its own copyright (that certainly belongs to the journal, not the author), so in any case you would not be able to make the final published version of the paper freely available.
In the end, it all comes down to bargaining power. If you can persuade a journal to accept your paper under something less restrictive than their usual terms, then great. For as long as the author’s bargaining power is less than the journal’s, however, the present conventions stay. I don’t think there is a legal loophole trick to change this situation.
December 14, 2012 at 8:13 pm
Are you sure of this? It sounds wrong to me, and seems to contradict the text of the CC0 instrument: “To the greatest extent permitted by, but not in contravention of, applicable law, Affirmer hereby overtly, fully, permanently, irrevocably and unconditionally waives, abandons, and surrenders all of Affirmer’s Copyright and Related Rights and associated claims and causes of action.”
Nothing you do before submitting to journal can possibly place you in breach of conditions. Something you do beforehand can make it impossible for you to fulfil the conditions that they want to impose subsequently — which is the whole purpose of the manoeuvre I am suggesting here. At that point it’s up to the journal whether it wants to proceed without getting what it wanted, or whether it prefers to abandon the whole process. And since we know journals take the former path in the case of manuscripts that are public domain due to being Federal Government work, I don’t see why they wouldn’t do the same with manuscripts that are public domain for other reasons.
December 14, 2012 at 9:39 pm
I am never sure about anything. Copyright law is in principle different in each country and the creative commons declaration is, as I understand it, trying to be simultaneously applicable in any possible jurisdiction. It does not purport to say that the implied legal theory is applicable anywhere (hence the reference to what is permitted by applicable law).
Perhaps we have different experience of journal submission, but my recollection is of signing a declaration at submission time, and it is this that I was suggesting might be “breached”. If no declaration is made at submission time and does not happen until later, then indeed I agree that “unable to fulfil the conditions” is good description of the situation.
You may be correct that the publisher would accept the situation if you had made the work “public domain”; it seems to me, however that the two situations are not comparable. While they have little choice but to accept the legal situation imposed by statutory framework of countries such as the UK and the USA, they do have a choice in respect to the actions of individual authors. In any case, it would not give you the right to circulate the version as published.
May 13, 2013 at 9:11 pm
[…] or on your own web page. There are lots of places you can post it — take your pick. Either place it in the public domain or licence it as CC BY, and do it explicitly: both options make work available for the world to […]
May 13, 2013 at 9:14 pm
[…] First, if the work is already in the public domain — for example because it was created by an employee of the US Government as part of their job — then there is no copyright to transfer. In this case, the journal is already free to publish the work (as indeed is any other journal), and they will usually just ask the author to make a statement certifying the PD status of the work. (JVP’s form has this option.) I don’t know how such journals would react to non-Government employees who had dedicated their work to the public domain. It would be interesting to find out. […]
November 20, 2013 at 11:45 am
The comment by ipalchemist is right. Copyright is there whether you want it or not. But you can publicly announce that you don’t intend to exploit it – that is what CC0 and the like does. I found when dealing with all publishers, including Elsevier, that they always give way when I say “I refuse to assign copyright to you” and let me sign a licence with acceptable terms (a pdf, so they clearly DO get such requests regularly) instead. So no need to use ingenious schemes such as Mike suggests; just stand up to publishers and they give way.
November 20, 2013 at 12:17 pm
“Copyright is there whether you want it or not. But you can publicly announce that you don’t intend to exploit it – that is what CC0 and the like does.”
That is certainly not what CC0 says it does. See also the “About CC0” page, which says: “In contrast to CC’s licenses that allow copyright holders to choose from a range of permissions while retaining their copyright, CC0 empowers yet another choice altogether – the choice to opt out of copyright and database protection”.
November 20, 2013 at 12:22 pm
Every country has a law that states in effect that copyright is automatic, it lasts for so long, gives you these rights, and there are these exceptions. It’s based on wording of Bern Convention. One can choose not to exercise one’s rights, to announce that fact publicly and then be legally tied by that announcement, but one cannot unilaterally destroy copyright. CC’s wording is that the person is “opting out” of copyright. Not the same as “destroying” copyright.
November 20, 2013 at 12:26 pm
Charles, I herely declare this comment to be CC0, dedicated to the public domain.
Are you saying that despite my having done so, I still hold copyright over this comment, and have merely made a public commitment not to use it?
If you reproduced this comment without my permission, could I still sue you for copyright violation?
Alternatively, if you loved this comment so much that you wanted to be its owner, could I still transfer copyright to you?
November 20, 2013 at 12:53 pm
Yes, you still hold copyright on it, but because of your public commitment not to exercise your rights, you can’t stop me doing what I like with it, including making money by selling reproductions of it. So you can’t sue me if I copy it. However, your Moral Rights are unaffected, so you could sue me if I misquoted you.
Yes, you could assign copyright in it to me, but I would be tied to your earlier commitment so I also could not sue if some third party reproduced your deathless prose.
November 20, 2013 at 1:04 pm
OK, that all seems fine. So in fact I could CC0-dedicate my accepted manuscript, then sign copyright over to Elsevier, and they would be unable to prevent people from doing what they wished with the paper?
November 20, 2013 at 1:30 pm
Just so long as by doing so you weren’t in breach of any of Elsevier’s other terms and conditions. It would be – er – courteous of course to sign the transfer but add a “PS You DO realise this is a CC0 document, don’t you?” and wait and see what happens!
November 20, 2013 at 1:37 pm
That sounds perfect, thank you!
November 20, 2013 at 5:03 pm
I found when dealing with all publishers, including Elsevier, that they always give way when I say “I refuse to assign copyright to you” and let me sign a licence with acceptable terms (a pdf, so they clearly DO get such requests regularly) instead.
I have independent evidence that this is true–Andy Farke was publishing a paper with a student in a nominally closed-access journal and asked to not transfer copyright, and they let him do it with no fuss.
I have no idea how long they’ll continue to do that if such requests get to be more common, or if people try it at higher-impact journals. But still, it’s a nice sign that the world is changing by slow degrees.
November 21, 2013 at 12:49 pm
[…] of Green-OA embargoes (zero), the SV-POW! decision tree, publishers’ lack of control over what you do before you sign the copyright transfer, the inability of impact factor to predict citation count (post to come), the childishness of […]
January 22, 2014 at 9:52 am
[…] the publisher is intransigent enough to reject the SPARC Addendum, the fourth approach is to dedicate your manuscript to the public domain (for example by posting it on arXiv with the CC Public Domain Declaration). Then return the […]
January 22, 2014 at 5:57 pm
[…] la editorial es tan intransigente como para rechazar el addendum SPARC, la cuarta opción es dedicar tu manuscrito al dominio público, por ejemplo, publicando en arXiv con la declaración de dominio público de Creative Commons. Una […]
June 16, 2017 at 9:13 am
[…] What would happen if I placed my manuscripts in the Public Domain? […]