voiding contract for research paper publishing in a journal

Question

Hypothetical scenario: a person Adam wrote a research paper in chemistry. He submitted his paper to a less prestigous online journal that publishes articles and research papers on an online website, but does not print them on a piece of paper. A part of the submission process is a contract in which author of an article gives certain rights to the journal.

Say four years after the mentioned journal published Adam's research paper on the journal's website, Adam submited his research paper to a more prestigious journal.

question: Can Adam void the contract with the less prestigious journal and submit his research paper to the more prestigious journal for publishing there?

Answer 1

Adam cannot simply void the contract because he has a chance to publish in a more prestigious journal. What he can do depends on the provisions of he contract to which Adam agreed.

It is likely, but far from certain, that the agreement permits Adam to cancel it under specified circumstances. If it does, and if those circumstances now apply, Adam can cancel and then submit the paper to the other journal.

It is possible that the contract gives he first journal (J1)_ exclusive rights only for a limited period of time. If this is so, and if that time has passed, then Adam may submit the paper to the other journal (J2) without violating the agreement.

It is likely, but not certain, that the agreement has provisions permitting the paper to be republished in another journal. If it does, than Adam may republish by complying with those provisions. They will probably include a requirement that the J@ publication include a notice similar to this:

This paper was originally published in J1 in the {date} issue.

J2 would have to be willing to include such a notice.

The agreement between Adam and J1 will specify some things that J1 must do, as well as things that Adam must do. If J1 has failed to carry out a significant part of its obligations, for example if it never published Adam's paper, Adam may be able to rescind the agreement for materiel breach. Exactly what failures on J1's part allow this varies by jurisdiction. Adam would be wise to consult a lawyer before taking this step.

Adam may request permission from J1 if none of these situations applies, and J1 may give permission. It would probably insist on a notice like the one mentioned above. But J1 does not have to grant such permission.

If none of the situations above apply, and Adam cannot get (or does not ask for) permission from J1, then submitting the paper to J2 would probably violate Adam's agreement with J1. J1 could sue Adam, and perhaps J2 also. If the people running J2 know of this situation, they may well refuse Adam's paper.

Adam may be able to write a new paper, based on the same research as his original paper, perhaps with more recent research added. That would not be covered by Adam's agreement with J1, and he could submit that to J2.

Answer 2

Transfer of copyright is not part of the submission process, it follows from acceptance and is (or should be) a prerequisite for publication. Prior to the publication agreement, there is typically a somewhat vague commitment where the author "promises" that the article has not been published elsewhere and is not under consideration for publication elsewhere, but these rules are not as clearly expressed as being contractual in nature, and in the case of a skeezie journal a clueless author may not have been informed of this promise.

It is relatively rare for a journal to accept and publish a paper without an actual license or transfer of copyright from the author. In lieu of an explicit agreement, the publisher can at least rely on an implicit license, that is, simple permission to publish. This is not an exclusive license or a transfer of copyright. If there is no explicit written agreement, the first publisher will not be able to sue anybody. If the second publisher likewise does not get a written agreement signed, that publisher also cannot sue anybody.

If there is a written agreement (with the first publisher, you can extend this to the second publisher in obvious ways), it will most likely but not necessarily address certain copyright formalities: what the author gives (permission to publish, vs. complete transfer of copyright), and if the agreement is to publish, it should address the durability and exclusivity of the license. The agreement should also include a clause indemnifying the publisher, saying that "If we get sued because of your actions, you must...." (then some clause about the author having to take responsibility). There is, or should be, a clause that avows that the author has the right to make all of these promises.

If the agreement with publisher 1 is an exclusive perpetual license, or one with a long period, the author will have breached the agreement in (somewhat) later submitting the paper to another journal, and the breach arises when the second journal also publishes the article. The second journal could then be sued for copyright infringement, and if their contract includes an indemnification clause and the relevant author's representation, the second journal can force the author to bear the legal burden. If the initial agreement was non-exclusive, then the agreement with publisher 1 has not been breached. But publisher 2 might have a direct case against the author, if the agreement with publisher 2 includes language that is incompatible with the publisher 1 agreement. So if publisher 2 wants complete transfer of copyright, they will have to work out an exception for prior versions in their agreement.

Publisher 2 may not be willing to make such an exception. If not, and if the author does not make publisher 2 aware of the issue, then publisher 2 might sue the author for breaching the agreement. The author might also negotiate with publisher 1 to terminate the first agreement: however, even that might be insufficient w.r.t. breach of the agreement with publisher 2.

So: if there is a written agreement, read the agreement carefully, and think about whether you are making a false statement, such as that you have the right to transfer copyright to the publisher. Your earlier agreement may have taken away that right.