Can a single author grant an exclusive license to a publisher?

+4 votes
asked Dec 23, 2015 in Open Science by dhimmel (265 points)

My understanding is that when multiple authors create a manuscript they become joint copyright owners.

From my research, it appears that as a joint author you cannot grant exclusive licenses:

As a joint author, you cannot grant an exclusive license. Granting an exclusive license would directly harm the other joint authors, and thus you need their approval. See the section on Copyright Licenses and Transfers for more on the difference between exclusive and non-exclusive licenses.) However, you may grant non-exclusive licenses without approval from the other authors, which can lead to situations in which each author licenses the work to a different publisher.

However, some subscription journals only seek a contractual exclusive license or copyright transfer from the corresponding author. Since the other authors never sign an agreement, do they retain all the rights they possessed prior to any agreement between the publisher and corresponding author? If so, could a joint author who made no agreement release the typeset article under any non-exclusive license of their choosing, such as CC-BY?

For example take this License to Publish for IJE. Only the corresponding author completes the agreement. The only mention of coauthors comes on the signature line:

Signature (on behalf of all co-authors (if any)) 

The idea that the corresponding author can sign on behalf of all coauthors seems suspect to me.

Do any legal experts have an assessment of this situation? Also other instances where journals only directly engage the corresponding author for a copyright agreement would be appreciated.

1 Answer

+3 votes
answered Jan 10, 2016 by ArtOfCode (90 points)

You are correct: a single author or copyright holder of a joint copyright work cannot act on behalf of all the copyright holders without their explicit permission.

That means that the signature on behalf of all co-authors you mention can be done, but only if the signatory has previously consulted with all the copyright holders and got their permission to act on their behalf in signing the document.

Prior permission, however, can be in a number of forms: you can simply talk to all the copyright holder and get permission for each and every action you're taking on their behalf, or it's also possible that all the copyright holders can sign another document (similar to a power of attorney, but for copyrights) that authorises one person to act on behalf and in the interests of all the copyright holders.

commented Jan 11, 2016 by dhimmel (265 points)
I'm interested in the case where prior permission was not obtained, but the corresponding author signed on behalf of all co-authors, as I suspect this is a frequent occurrence. What recourse would a journal have if a non-corresponding author does not adhere to an agreement made by the corresponding author without their prior permission?
commented Jan 11, 2016 by ArtOfCode (90 points)
@dhimmel In such a case, the agreement would be null and void. The journal would no longer have a right to use the work, and would have to remove it. If this causes them loss, they can recover it by suing the corresponding author, if they are inclined to.
commented Oct 1, 2016 by cwiljes (20 points)
In my experience, in most cases the corresponding author does not explicitly inform the co-authors about the details of the license. However, the co-authors do know to which journal their publication is submitted. So, as long as the co-authors do not ask for information about the license,  the corresponding author may imply that the co-authors are aware of the license.
Overall, I do not believe that the initial argument would hold in court in an attempt to invalidate a large number of existing exclusive license agreements. In individual cases, especially in cases where there was some misunderstanding between authors or in which a submission was sent to another journal than originally communicated, this might hold, though.

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