Last year a number of early career academics discovered that their PhD theses, which had been deposited in institutional open access repositories, were being sold for profit via Amazon Seller pages. In this post Guy Lavender, with contributions from Jane Secker and Chris Morrison, discuss the implications of this episode in relation to the protections provided by creative commons licensing for academic work and the extent to which openly published theses constitute prior publication for early career researchers looking to publish their doctoral work as a book.

There is a lot of pressure on early career researchers to publish their work after they successfully defend and are awarded their PhD. One of the first questions they have to tackle is the need or requirement to publish their thesis open access. For many this is a straightforward decision, they want to get their research out there, and increasingly institutions require this of them. The thesis goes into the university repository, or a dedicated repository of theses and the full text is available for the world to read. Surely a good thing? Yes. But, in some cases it raises questions of whether this constitutes “prior publication” and restricts their ability to get articles or books based on their doctoral research published. And in extreme cases it might prompt unscrupulous publishers to publish their work commercially without consent.

What Happened?

In November a post-graduate student informed our library team that their thesis had been published on an Amazon seller page without permission (NB. Amazon Seller accounts are pages within the Amazon platform where 3rd parties are able to use the Amazon front end to sell their own products (https://services.amazon.co.uk/). The seller is a separate entity from Amazon). The student was especially anxious as they were publishing a book based on their thesis with a commercial publisher in a few days.  They notified Amazon (using the link on the seller page) that a copyright infringement had occurred, but Amazon replied that the author was not the owner of the copyright. The student then contacted us in the mistaken belief that their institution, the OU, owned the copyright of their thesis. In fact, in common with many higher education institutions (HEIs), the policy is that the student retains ownership of their thesis.

Because of the urgency of the situation and the student’s anxiety about what their publisher might do, our team also submitted notices to Amazon. We received what appeared to be automated responses from Amazon asking for more information, and then a refusal based on Amazon’s (correct) determination that the OU was not the owner of the copyright. However, this appeared a somewhat automated response since Amazon had given the author the same reply.

When investigating the Amazon seller page we also found a significant number of other OU theses, all apparently taken from our institutional repository; and all available for purchase in clear breach of the non-commercial creative commons repository licence.  We also found other HEIs had apparently had content published in this way, although the 3rd party shop-front was different.

Institutional Responses Considered

In addition to the attempted take down notices, we also submitted a notice in terms of s512(c) of the Digital Millennium Copyright Act (DMCA).

However, given the potential impact on our students, their funders and publishers, and because of the reputational implications our governance committee decided to stop all open publication on our repository with immediate effect. This was a robust response which was understandable in the circumstances. However, it did impel us to try to find other solutions, particularly as our institutional mission includes a commitment to openness. There were also tensions with research funding which was granted dependent on open publication in our repository. The direction of travel of Plan S and similar initiatives made it all the more important to find a solution.

Outcome

After two weeks, we noticed that the 3rd party shop-front and all reference to the published theses had been removed.  Amazon did not notify us that this had happened, nor provide us with any reasons why they had done so.

Some Learning

Despite the initial delay in the content being removed, it was good to see that the Open Access (Creative Commons) licensing terms used for repository publishing were robust enough to stop the seller, and that Amazon (albeit belatedly) tacitly acknowledged this.

The publisher organisations we contacted were very supportive of our concerns, and it seems ongoing engagement with them to petition the likes of Amazon on behalf of academic authors would be beneficial. Some of those organisations interpret “publishing” differently and so may not feel authors publishing in repositories meet the organisations’ membership criteria. However, these differences in terminology probably reflect the different objectives of the organisations, and have not excluded the possibility of some collective activity.

The fact that Amazon recognised the force of the Creative Commons licence, and took action against the seller (even though we had technically only made the case for removal of one of the published articles) was positive. It has also been good to see authors’ societies’ willingness to act with the HE sector to address these challenges; but perhaps most importantly publishing open access under an appropriate licence was shown to be effective. As the scholarly communications and publisher landscapes change it is important that we enforce these mechanisms that protected scholarly publishing.

So what does this mean for researchers?

While the experiences described here are relatively rare, it does show that open licences can be abused and that early career researchers might be reluctant to use open licences without copyright advice and guidance. Awareness and understanding of copyright is known to be relatively low and with the huge pressure on early career researchers to gain publications, some may see open access as a threat or a problem. These are the types of issues that Jane and Chris cover in their board game the Publishing Trap (adapted now for online delivery), which covers questions of copyright licensing choices, open access, commercial publishing models and ethical considerations such as plagiarism.

While the experiences described here are relatively rare, it does show that open licences can be abused and that early career researchers might be reluctant to use open licences without copyright advice and guidance.

University research support teams also provide guidance on the benefits of open access as a way to expose plagiarism and other types of academic misconduct. And, despite the concerns of some researchers, many publishers do not regard depositing theses online as prior publication because theses usually need further work before they can be published as articles or books.

Ultimately, in addition to collective action from publishers and online platforms, researchers need a wide range of skills to make informed choices about where and how to share their work. This entails balancing the risk of copyright infringement against the benefits of sharing their work openly with the academic community.

Our thanks to Chris Morrison for giving us permission to share this blog. The original blog can be found on the London School for Economics site.