If you’ve published an article in an Elsevier journal, you might have missed an interesting aspect of the contract you signed with them to get published.  It goes something like this:

I grant Elsevier the exclusive right to select and reproduce any portions they choose from my research article to market drugs, medical devices, or any other commercial product, regardless of whether I approve of the product or the marketing.

What, you don’t remember agreeing to that?  Actually, the words above are mine.  But while it isn’t explicitly stated in author agreements, Elsevier authors usually grant that right implicitly. Elsevier’s typical author agreement requires you to sign over your entire copyright to them. Why ask for the whole copyright, instead of just, say, first serial rights,  and whatever else suffices for them to include the article in their journal and article databases?  Elsevier explains:

Elsevier wants to ensure that it has the exclusive distribution rights for all media. Copyright transfer eliminates any ambiguity or uncertainty about Elsevier’s ability to distribute, sub-license and protect the article from unauthorized copying or alteration.

That “unauthorized” would be “unauthorized by them”.   Not “unauthorized by you”.  Once you sign, you’ve given up the right to authorize copying or alteration, or any other rights in the copyright, except for rights they offer back to you.  For instance, you can’t “sub-license” your article for anything Elsevier deems “commercial purposes”.  But they can, and do.

And sometimes those commercial purposes have had questionable ethics.  The Scientist reported about a week ago that “Merck published [a] fake journal” with Elsevier.  (Free registration may be required to read the article.)  As they report:

Merck paid an undisclosed sum to Elsevier to produce several volumes of a publication that had the look of a peer-reviewed medical journal, but contained only reprinted or summarized articles–most of which presented data favorable to Merck products–that appeared to act solely as marketing tools with no disclosure of company sponsorship.

The publication, Australasian Journal of Bone and Joint Medicine, was published by an Elsevier subsidiary called Excerpta Medica.  As that subsidiary explains on their web site, “We partner with our clients in the pharmaceutical and biotech communities to educate the global health care community and enable them to make well-informed decisions regarding treatment options.”  In other words, they’re a PR agency for drug companies and other companies selling medical products.  Part of what they do is publish various periodicals designed to promote their clients.

Now, a number of companies publish sponsored magazines, and usually such publications clearly disclose their sponsorship, or are otherwise easily recognizable as “throwaway” commercial journals.  But this publication was designed to look more like a peer-reviewed scientific journal.   The Scientist reports this court testimony from a medical journal editor:

An “average reader” (presumably a doctor) could easily mistake the publication for a “genuine” peer reviewed medical journal, [George Jelinek] said in his testimony. “Only close inspection of the journals, along with knowledge of medical journals and publishing conventions, enabled me to determine that the Journal was not, in fact, a peer reviewed medical journal, but instead a marketing publication for MSD[A].”

Indeed, one of the publication’s “honorary editors” admitted to the Scientist that it included marketing material, but that “[i]t also had papers that were excerpted from other peer-reviewed journals. I don’t think it’s fair to say it was totally a marketing journal.”  But that was what Merck paid Elsevier for, and the excerpts from real Elsevier-acquired research articles helped the publication as a whole look like disinterested scholarship instead of advertising.

Elsevier did show some embarrassment from these revelations, particularly after widespread online outrage.  A statement posted yesterday by an Elsevier spokesman admitted the journal did not have “the appropriate disclosures”, and added

I have affirmed our business practices as they relate to what defines a journal and the proper use of disclosure language with our employees to ensure this does not happen again.

That’s certainly a step up from a previous statement quoted in the Scientist article, which, after also admitting the disclosure problems in the “journal”, simply said “Elsevier’s current disclosure policies meet the rigor and requirements of the current publishing environment,” and made no promises about what they would do in the future.

But the new statement still  leaves unanswered the question of why there are still  4 “peer reviewed journals” published under the imprint of a PR agency whose stated mission is to “support our client’s marketing objectives with strategic communications solutions in [areas that include] Medical Publishing.”  And legally, Excerpta Medica still has the right to cherry-pick from any article signed over to Elsevier in any of their marketing publications.  Or, as they announce to potential clients, “we can leverage the resources of the world’s largest medical and scientific publisher.”  Even with what Elsevier considers “proper use of disclosure language”, some authors might not want their writing used in this way.

Am I being unfair to Elsevier here?  They’re not the only academic publisher that asks its authors to sign over their copyrights.  And some of the more liberal open publication licenses, which I’ve been known to recommend, are broad enough that they too give marketers rights to reuse one’s work in their promotions.

On the first of those points, I recommend in general that authors avoid signing over their rights entirely (as I’ve managed previously), no matter who the publisher is.  But last I checked, most other academic publishers don’t also own a PR firm for commercial product marketing.  (And if any do,  they should disclose this possible use in their interactions with authors. I find no explicit disclosure of this in either Elsevier’s model agreement or on the current version of Elsevier’s author rights page.)

On the second point, if you grant an open publication license, you generally know what you’re getting into.  And you can still defend against misuse of your work in ways that you can’t do if you just sign over your copyright to a publisher.   Some open access licenses, for instance, include an attribution condition that requires any reuse of the article to credit and point to the original source, and derivation conditions that either prohibit changes or require changes to be disclosed.  (And some licenses simply prohibit commercial use altogether except by permission.)  Whatever license you choose, if a company does quote your work out of context in its marketing, and you’ve kept your own rights to reprint the article, you can publish a rebuttal as widely as you like, showing the omitted context that counters a company’s claims.  These conditions and rights can provide potent deterrents against misuse of your articles.

Often the debates over scholarly author rights and open access focus on who gets to read and use scholarly articles, and what gets paid to whom.  This episode highlights another important part of the debate: who gets the right to guard the integrity of one’s scholarship.  In the light of recent revelations, authors might want to think carefully about whether to sign that right away, and to whom.

[Updates, 9 May 2009: Some spelling corrected, and a note added that disclosure is not the only potential concern of authors whose works are used for marketing purposes.]