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Consider a seminal paper published 40 years ago in a journal that went belly up 30 years ago. Many cite it but hardly anyone has seen it. Can I expect trouble if I make an electronic copy available on my blog?

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  • This question could also be a good fit in Academia.SE. I assume the author wanted a legal point of view instead of an academic one. In case someone misunderstood me, I'm not advocating (ha!) for a migration. Commented Mar 3, 2023 at 16:09
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    In what jurisdiction was the paper published? What is the exact year of publication? In some jurisdictions, copyright law has changed over time, and if you're talking about the US, copyright law changed significantly in 1976 (effective Jan 1 1978), which is close to the vague "40 years ago" timeframe you're talking about.
    – shoover
    Commented Mar 3, 2023 at 16:50

4 Answers 4

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Factual assumptions

ohwilleke's answer is entirely correct. However, it makes factual assumptions based on the standard meaning of "journal" and "author", which I believe to be unwarranted. From the question, it seems likely that we are talking about a scientific paper, which operates under a very different economic and legal model.

I am going to assume that:

  • the authors sent a draft of the paper, the preprint, to the journal editor;
  • the journal editor sent the draft to external experts (the reviewers); those reviewers, and possibly the editor, gave some feedback;
  • the authors modified their draft based on that feedback to produce the final version;
  • throughout all this, the authors, editor and reviewers agreed with the journal’s policies;
  • the journal policies require a transfer of copyright to the publisher, a legal entity that "owns" large number of journals and provides some technical services (article typesetting, maintenance of a web site with the journal contents, maintenance of DOIs, etc.);
  • neither the authors, nor the editor, nor the reviewers received monetary compensation for their work (this is a key economic difference from non-academic journals, but as we shall see, it has little legal effect)

In theory, all depends on the copyright release agreement

When the author(s) submit a draft to a journal, they have to click through an agreement to release copyright. Such a clause could, in theory, be anything the authors and the publisher agreed that does not violate contract law. In practice, because the publishers are a small oligopoly, the agreements are more or less standardized.

The "sample publishing agreement" given as example at https://www.elsevier.com/about/policies/copyright (as downloaded on March 2, 2023) is more or less representative:

I hereby assign to the Copyright Owner the copyright in the manuscript identified above (where Crown Copyright is asserted, authors agree to grant an exclusive publishing and distribution license) and any tables, illustrations or other material submitted for publication as part of the manuscript (the “Article”). This assignment of rights means that I have granted to the Copyright Owner the exclusive right to publish and reproduce the Article, or any part of the Article, in print, electronic and all other media (whether now known or later developed), in any form, in all languages, throughout the world, for the full term of copyright, and the right to license others to do the same, effective when the Article is accepted for publication. This includes the right to enforce the rights granted hereunder against third parties.

The authors are the sole intellectual contributors to the preprint version, but a copyright release agreement could still bar them from publishing it. The vast majority of agreements between novel authors and publishing houses forbid the author from selling the book rights to another publisher or posting drafts of the novel on the author’s website (two actions that would result in greatly diminished sales for the publisher).

The published version incorporate revisions where the reviewers and possibly the editor contributed significant intellectual contributions. Again, all depends on the copyright agreement - the publisher terms could in theory require that the reviewers and editors release their contribution under an irrevocable license to the authors. In practice, all goes to the publisher.

The financial structure is irrelevant

The fact that authors (and reviewers, and editors) are not paid by the publisher is irrelevant. Yes, a contract (in countries) requires consideration from both sides; however, consideration needs not be monetary.

There is not much doubt that publication of an article is "consideration", at the very least because that is considered prestigious among a significant fraction of the population. In addition, there is ample evidence that funding agencies and university HR staff evaluate and promote scientists based primarily on the papers they publish in scientific journals.

In practice, preprint rules are lax

The vast majority of academic publishers allow authors to publish the preprint version although conditions vary (only the preprint, only on a personal website, only for a limited time, only after some embargo period, only if you cite the final article with the correct DOI, etc.).

I would speculate that this is the result of cultural pressure. Many academics decided to post their articles (sometimes the preprint before sumbission, sometimes the published version) on the internet without much regard to pesky questions of copyright law, because they viewed publishers as gatekeeping greedy monopolistic parasites. The publishers decided to embrace the practice in order to be able to put some limits on it, rather than try to mass-fire lawsuits against the people who provided them with free labor.

Regardless of whether that speculation is correct, the current arrangement is not the inevitable result of legal rules, and publishers could conceivably decide to change their preprint sharing policies at any moment.

Limitations to the copyright of research papers

This section is quite obviously not exhaustive, but given that the original question does not specify a jurisdiction, I did not search beyond what I already know.

In the , works produced by employees of the federal government as part of their work duties are generally public domain (17 U.S. Code § 105; do note that subsection (b) means certain works produced by certain institutions still are under copyright). Hence, if the authors were both researchers at a federal research institution, the preprint is public domain and can be republished irrespective of the publisher’s will. (I am led to believe, however, that most US researchers are not employees of the federal governments, but rather of private or state universities.)

In , as a result of public pressure against publishers (see "greedy monopolistic parasites", above), the European Commission published non-binding guidelines (2012/417/EU) asking that

there should be open access to publications resulting from publicly funded research as soon as possible, preferably immediately and in any case no later than 6 months after the date of publication, and 12 months for social sciences and humanities

That (non-binding) recommendation has been adopted with varying adaptations in various EU countries. The exact implementation in a given country should be checked before relying on it. For instance, in France, article L533-4 du code de la Recherche allows authors (after the six or twelve months embargo period) to post the published version (not just the preprint), irrespective of what what signed with the publisher, as long as at least half of the funding for the research came from public funds.

I will assume neither of those apply.

The copyright owner is likely still around

Academic journals are born and die regularly. However, academic publishers rarely do (Elsevier is almost 150 years old).

As ohwilleke says, the copyright release contract signed 40 years ago is likely still valid; even if the publisher folded, it would apply to the publisher’s legal successor. (The question of how legal rights are liquidated in a bankruptcy would be an interesting question that I am not competent to answer; it is plausible that under certain circumstances the contract would be dissolved.)

If the authors can access the copyright release they signed back when they submitted the article, you might be able to determine that posting the preprint or the final article is acceptable. (I realize that this is a fairly ludicrous hypothetical, given that the paper was published 40 years ago.)

Otherwise, it is extremely likely that the publisher would be able to sue, even if the publication occurs with the authors’ full support. Whether they are likely to do so, and whether publishing anyway is ethical, are of course non-legal questions.

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  • This is a great answer as it provides a lot of good background to explain why the copyright holder might still be around (and not be the authors). Commented Mar 2, 2023 at 18:34
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    The odds of being sued are very difficult to estimate, but for the OP it might already be helpful to know what the kinds of damages would be if successfully sued as an individual for publishing a single paper. @KFK Do you have any ideas about that? If I was the OP that might influence my willingness to take the risk. Commented Mar 2, 2023 at 18:36
  • I believe one reason for the publishers' approach is pressure caused by governments that make rules that force grantees to make sure their papers are publicly accessible. Commented Mar 3, 2023 at 2:52
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    @user2705196 The worst-case scenario includes criminal liability as well (en.wikipedia.org/wiki/United_States_v._Swartz). That’s of course extremely unlikely.
    – KFK
    Commented Mar 3, 2023 at 9:32
  • @KFK Good point, but worth keeping in mind that Aaron Swartz was never charged with copyright violations but with "wire fraud, computer fraud, unlawfully obtaining information from a protected computer and recklessly damaging a protected computer". It is of course true that many people consider the CFAA to be phrased so broadly that it can be used to charge anyone for anything involving a computer on a network... But I'd say in the OPs case I'd definitely focus on the copyright violation and what the civil damages would be that a publisher could sue for publishing one of their articles. Commented Mar 3, 2023 at 13:27
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The unavailability of the journal that published an article or the author is not a defense to copyright infringement. U.S. law does not recognize an "orphan works" exception to copyright infringement. The copyright probably belongs to the author or the estate of the author of the article rather than to the journal in any case. And, a copy of 100% of an article made available to anyone on the Internet, even if not for profit and for educational purposes, probably doesn't constitute fair use.

So, if you were sued for copyright infringement, you would probably lose.

Whether the author, or the author's estate, or the journal are likely to sue you for doing so is another matter. It probably isn't very likely, but there are no guarantees. And, if you were sued, full statutory damages and attorney fees would probably be available to the person suing.

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    Thank you very much for answering. I forgot to mention that the authors are alive, well and consenting, I was wondering about the possible owners of the defunct journal. (PS your cat is the spitting image of mine).
    – IAP
    Commented Mar 2, 2023 at 10:31
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    @Trish wouldn’t the copyright to that version (as well as all others) be transferred to the publisher? Commented Mar 2, 2023 at 15:35
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    @Trish Incorrect. Non-open access articles generally require a full and permanent transfer of copyrights. This is more strict than books, where copyrights may revert to the author when the book is out of print. Example, IEEE "Prior to publication by the IEEE, all authors or their employers shall transfer to the IEEE in writing any copyright they hold for their individual papers.". Elsevier "Elsevier requests a transfer of copyright" [for non-OA]
    – user71659
    Commented Mar 2, 2023 at 17:27
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    Yes, I want to second @user71659's point: many scientific journals take the copyright from the authors and will not publish the work unless the authors sign over their copyright. This is not rare (although it has been changing somewhat recently). Commented Mar 2, 2023 at 18:30
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    @user71659 The exact opposite is usus in Germany, but they demand a quite lengthy exclusive license.
    – Trish
    Commented Mar 2, 2023 at 18:38
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If you're in the US, try searching the article in question in the catalog of US Copyright Office.

Works which are registered with the copyright office have a stronger protection against infringement: the plaintiff doesn't have to prove that he suffered actual losses or damages and sue you for statutory damages instead, which is between $750 and $30000 per work, and could be even higher in some cases.

If the article you want to share is not registered, the risk becomes significantly lower, as proving that a defunct journal has suffered profit losses due to your infringement will simply not be worth it. You can still be sued in theory, but in practice a reasonable copyright holder will just send you a takedown request and won't bother to sue if you comply.

PS. Remember that none of the answers here constitute actual legal advice.

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    Again, not legal advice, but if it's not registered, they can only sue you for actual damages, which is a legal term-of-art that means they have to demonstrate that your distribution of the paper actually caused them some sort of harm, either directly or indirectly. They would have a hard time trying to explain to the court what sort of losses they suffered on a paper that has been out of print for three decades. Again, not a lawyer, not legal advice. Commented Mar 3, 2023 at 12:55
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I am aware of analogous problems in my own field, which arose from legally-sloppy practices. The fundamental question is what license the author gave to the publisher. Some academic publishers are well-organized profitable businesses, some are not (they may not be businesses in any sense). In the latter case and especially for a work created in the early 80's, the odds are high that no explicit license was granted, in which case at most a court could find that the publisher was granted a non-exclusive license to distribute. The first question then would be, what license / transfer did the author grant (does the author even remember? or keep a copy?).

Assume that the author transferred copyright to the publisher (more probable with a well-organized profitable business publisher). The journal "going belly up" could mean that the publisher stopped publishing the journal but is still in business; or, the publisher went belly up. If copyright was transferred to the publisher, then the publisher or publisher's successor could sue you for infringement, assuming they can prove that copyright was transferred. If the work was only licensed, not transferred, and if the author grants you permission to distribute, that is the end of the matter.

It is entirely possible that transferred copyright can lie dormant for decades (the publisher went out of business and nobody tried to auction off the copyrights to the works published) – until one day something happens (somebody dies, a folder with copyright transfers is uncovered, and the rights were sold to a big commercial publisher). Now you face a threat from a new owner of the copyright. Without a good historical account of the author and publisher, there is a danger of a copyright infringement lawsuit.

One solution to the distribution problem is to have it available via a library or archive which is allowed to make copies, under 17 USC 108, which says that

it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsections (b) and (c), or to distribute such copy or phonorecord, under the conditions specified by this section, if— (1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage; (2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and (3) the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.

There is a legal way to get what you want, without you doing it. Not an endorsement, but Hathi Trust solves may of these "out of print" problems.

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