“Don’t ask, don’t tell” rights retention for scholarly articles The Occasional Pamphlet

"A strange social contract has arisen in the scholarly publishing field, a kind of “don’t ask, don’t tell” approach to online distribution of articles by authors.  Publishers officially forbid online distribution, authors do it anyway without telling the publishers, and publishers don’t ask them to stop even though it violates contractual obligations. What happens when you refuse to play that game? Read on....

An author has a simple solution to the quandary of whether to distribute through a publisher’s access-limited mechanism or freely online: Do both.  Unfortunately, publishers typically restrict authors from this approach through contractual limitations stipulated in copyright assignment forms.

This brings us to the strange social contract. ...

Why don’t publishers police their contractees more carefully, as the RIAA does with their customers who distribute copyrighted material online?  It would be a simple matter to find a small number of violators and send them take-down letters.  General publicity of this effort would presumably have a substantial chilling effect among academics against their routine violation of copyright assignments.

We can only speculate that the fear of upsetting their content providers trumps their need to maintain control over the content itself, given that there is no evidence that the online availability is hurting their revenues.  (The situation may be different with music, hence the RIAA’s different strategy.)  One can just imagine what kind of backlash an RIAA-style approach would have with academics, in addition to the desired chilling effect....

To many, including myself, this state of affairs is untenable.  I am not willing to routinely violate contracts in this way.  Consequently, I and others have for some time reconciled the two distribution mechanisms explicitly, by amending the contractual conditions of copyright assignments.  ...

In the many years that I have been routinely replacing or modifying copyright assignments, I have never had a complaint (or even an acknowledgement) from a publisher.  In retrospect, this may make sense.  Since the contractual modification applies only to a single article by a single author, it is unlikely that anyone looking for copyright clearance would even know that all copyright hadn’t been assigned to the publisher.  And in any case publishers must realize that authors act as if they have a noncommercial distribution license whether they formally retain one or not...."