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Copyright issues dog academics

In the publish or perish environment of academia, getting papers into high-impact international journals is a metric for determining a researcher’s performance and job prospects.

But are South African academics legally allowed to sign over copyright, which is vested in them and in their institutions, to international companies?

These international publishing houses, such as Elsevier and Springer Nature, are able to make careers by publishing an academic’s work in their journals, which have high citations (in other words, research published in these journals will be cited in other academics’ work) and global reach, but they also have tight control over the way in which the work gets disseminated and when.

Research put out by the University of Montreal last month shows that five publishing houses, one of which is Elsevier, published more than 50% of all academic articles in the world.

“Overall, the major publishers control more than half of the market of scientific papers both in the natural and medical sciences and in the social science and humanities,” says Professor Vincent Larivière, who led the study. “These large commercial publishers have huge sales, with profit margins of nearly 40%.”

In 2014, for example, Reed Elsevier, the parent company of Elsevier, posted a profit of $1.2-billion.

But when South African academics want to get published in one of these journals, they usually sign over their copyright.

“We ask, and the author voluntarily provides, for the transfer of copyright so that publishers have the means

to recoup the investments they made to provide [their publishing] services in the most technologically advanced and efficient manner,” Tom Reller, Elsevier’s vice-president for global corporate relations, told the

Mail & Guardian.

The publishing options also have different embargo times – with the exception of the “gold open-access option”, which all the major international publishing houses offer and

for which the copyright remains

with the author and there is no embargo time.

“In most South African institutions, the institution generally owns all of the work done in the course and scope of one’s employment,” says Denise Nicholson, a scholarly communications librarian and copyright expert. “But the institutions generally allow authors to sign over the copyright to international publishers to enable them to get published.”

Although there are authors’ addenda, which allow authors to retain certain rights, “most authors

to date seem reluctant to sign it because they don’t want to have their works rejected by the publisher”, she says.

But an amendment to South Africa’s exchange control regulations in 2012 means that academic copyright cannot be signed over to an international company without Reserve Bank approval.

In 2011, the Supreme Court of Appeal – in the matter of Oilwell (Pty) Limited vs Protec International Limited and Others – decided that intellectual property did not constitute capital, as per regulation 10(1)(c).

The regulation stated that “no person shall, except with permission granted by the treasury and in accordance with such conditions as the treasury may impose … enter into any transaction whereby capital or any right to capital is directly or indirectly exported from the republic”.

According to Kerry Faul, the head of the National Intellectual Property Management Office (Nipmo), “After the Oilwell case, where they declared that capital did not include intellectual property, the Reserve Bank was worried that there would be a flood of intellectual property assigned offshore. They reacted quickly to put regulations in place.”

A note by Werksmans Attorneys, written by their head of tax practice, Ernest Mazansky, says the amended regulation “states that capital includes any intellectual property right, and that the assignment thereof to a nonresident [of South Africa] will be construed as the intellectual property having been exported from South Africa”.

That includes academic copyright.

“Treasury decided that all intellectual property must be considered capital,” says Ela Romanowska, the director of technology transfer at the University of Witwatersrand.

“It is a case of bizarre unintended consequence … For academics, publishing is their bread and butter, what they get measured on doing. The majority of those [publishing houses] require you to assign the copyright in that article to the publishers. In terms of the regulations that came in 2012, you need to get exchange control approval.”

Technically, this means academics, or their institutions, need to get sign-off from the Reserve Bank each time they want to publish an article in, and assign their copyright to, an international publishing house.

According to the National Advisory Council on Innovation’s science, technology and innovation indicators for 2014, the country’s academics published more than 10?000 articles in 2013, through the Web of Science database.

Although not all of these were published in international journals, many of them were.

“Last year, there were thousands of publications [that would have required authorisation],” Faul says. “But you can’t go straight to the Reserve Bank [for permission]. You go through an authorised dealer, which are the banks, and the banks charge per application … For the institutions, it is a lot of admin.”

Nipmo, which was created by the Intellectual Property Rights from Publicly Financed Research Act, passed in 2008, “aims to ensure that recipients of funding from a government funding agency assess, record and report on the benefit to society

of intellectual property emanating from publicly financed research and development”, the organisation says on its website.

Nipmo is in its first year of a two-year trial phase in reporting academic copyright assignments to the Reserve Bank, rather than institutions having to do it themselves.

“[The amended regulation’s effect] was an unintended consequence of the way the regulation has been implemented. The institutions wanted to make sure they were not [defaulting] and we don’t want to stop publications,” Faul says.

Romanowska says the Reserve Bank was “trying to plug certain holes and in the process covered the whole building … [but] we don’t want to allow a situation where valuable capital is being shipped offshore for a song. Nipmo is checking: ‘Is this the best way to commercialise [the knowledge]?’ In many cases, it is.”

But, for some, the topic remains contentious: intellectual property is leaving the country and residing in the hands of international companies that limit access to it.

At the heart of the issue is long-running tension between researchers and publishers: academics need to publish journal articles for their careers, and getting published in prestigious journals increases the research’s citations, visibility and effect.

But journals are making a lot of money out of this research while restricting access to it, and peer review – the process in which academics review articles to ensure accuracy and good science – is done by academics for free.

As one senior academic in South Africa put it: “We do it because it’s an accepted part of our career process, the major driver for our careers. And, because we expect to have our work peer-reviewed [by others when we publish], we do it for others [for free. These publishers] are just making shitloads of money out of it.”

This matter came to a head earlier this year after Elsevier published new regulations, which extend republication embargoes for up to four years, controlling when content can be made available to the public. Since they in effect own the copyright of the final article, they can do this legally.

If research conducted by a South African researcher at a South African university is published in one of these journals with a long embargo period, or one that is only available to subscribers, you have to pay in dollars to read that research, or wait for the embargo to be lifted. Otherwise, the researcher’s institution pays for the article to be published, sometimes up to thousands of dollars or euros, as an open-access article, but Elsevier’s updated regulations put additional constraints on its cheaper open-access option.

Romanowska is prosaic about the issue of publishers charging for access to the author’s copyright.

“The reason Science and Nature [prestigious scientific journals published by Springer Nature] and some of these publications are expensive is because they are a business,” she says. “And their business is to create a leading publication that every [academic] wants to publish in.

“They have to make money like a business, and what they are saying with these embargoes is that you need to hold off making this article publicly available so that we can make returns.”

The issue is not the principle, she says, but the length of the embargo. “Four years? That’s ridiculous when they didn’t pay for the research.”

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