Licence for a published scale
Case text (Anonymised)
We have received a number of manuscripts involving a published scale where the scale’s developer is known to comb the literature and ask those who used the scale for research to pay for a retroactive license, sometimes asking for very large sums of money.
We have started asking authors on all submissions where the scale is used to provide a copy of the license agreement with the scale’s developer. In most cases, the authors do not have the agreement and are not receiving prompt responses from the scale’s developer and his team when they contact him to ask about the license. We have had to withdraw these manuscripts from submission until authors can provide evidence to indicate that the scale’s developer has granted them a license.
In a more complicated case, we found an accepted (but not published) manuscript that used the scale. We asked the authors, after acceptance, to obtain the correct permissions (they had not done so initially). They subsequently acquired the correct license, but the scale’s developer came back with a number of comments on the paper that he was requiring the authors to make prior to publication. This included adding three of his own papers to the reference list (but not indicating where they should be cited in the text). He also added his name and contact information to a number of places in the paper, most notably in the acknowledgments section.
The scale’s license contract and copyright agreement include a number of ‘copyright requirements’ that the authors must agree to. One of these is that all manuscripts using the scale that are being considered for publication must be submitted to the developer first to check that all copyright requirements are included. We felt it would be editorially irresponsible to allow these changes to the manuscript after peer review and have had to withdraw the manuscript (the developer also indicated that he "will not allow" the authors to publish the version of the manuscript that was accepted). The authors were very understanding about withdrawing their paper as they had been having a difficult time dealing with the scale’s developer and his team.
We have another case where the authors are removing data from their manuscript relating to the published scale but adding a note to indicate why they have done this. As such, the reporting of results will be incomplete.
We disagree with the actions of the researcher and his enforcement of copyright on the tool. We are currently only publishing articles that have a license permitted by the scale’s developer because we do not want to be sued or have to retract the articles.
Question(s) for the COPE Forum
• How should we be handling cases where this scale is being used?
• Should we be taking any action relating to the developer’s conduct?
The Forum asked if the journal had sought legal advice. There are copyright and licensing issues here that need to be addressed. Who holds copyright on the scale? Is the right to use the scale also copyrighted? What are the legal claims and what is required by the license (for example, is it use of the scale, reporting of the scale, etc). Perhaps consulting with inhouse lawyers could determine if the demands of the developer are reasonable. The Forum agreed this is a very difficult issue, with no easy solution.
A suggestion was to write an editorial, highlighting this issue. It seems that there may be many journals who are experiencing similar problems. The editor might consider contacting other editors and producing a joint editorial or opinion piece, highlighting the issues around this type of behaviour and holding authors to ransom in this way, and emphasizing the fact that this is not good for the advancement of scientific knowledge or in the public interest.