Publishers On Publishing

by Nitasha Devasar

  years, we have significantly diverged from its specifics, particularly in our

  attempts to restructure copyright law to create a more level playing field for all of those who participate in the film and music industry. That said, the basics of copyright law have been thrashed out over centuries in jurisdictions as far apart as England and the United States. We have judgements which stipulate that copyright cannot be perpetual, that news or a fact alone cannot be copyrighted, that ideas by themselves merit no protection, that copyright can subsist in independently created similar works, that a copyright owner may lose the right to control the subsequent sales of a specific copy of a protected work after the first legal sale of that copy. All of these concepts, some of which have cohered into doctrines, are now fundamental to the practice of copyright law. They are not restricted to the legal inventions of a specific jurisdiction but have emerged in jurisdictions across the world, and are generally accepted across the globe. They now form what could be considered the backbone of the mechanisms of copyright protection, and indicate how both publishers and authors may use a prior work, where they require permission to use existing content, and where they may make use or refer to content without authorization.

  Q: In the wake of the outcomes of the Delhi University (DU) case, what do you think is the way forward for various stakeholders here? Saikrishna: There does exist a legal mechanism through the offices of the Indian Reprographic Rights Organisation (IRRO) which enables photocopies to be legally made.The DU case aside, photocopies of works are often made in India without the payment of any fees to the content creators. Ideally, functioning mechanisms need to be set up and used to ensure that fees are paid for photocopies for legitimate purposes such as education.This would not burden students too much; it would ensure that publishers are paid for the use of their work; and it would ultimately contribute to enabling publishers to ensure that academic content continues to be available in the Indian market. Such an outcome would be to the benefit of all the stakeholders including publishers, students and authors whose royalty payments are directly dependent on the income

  which their books generate. Q: Given the proliferation of photocopying in our educational institutions, how do you think the existing law can be used to protect copyright holders’ interests?

  Saikrishna:As we’ve just discussed, the way forward likely involves not attempting to stop photocopying in toto but in attempting to ensure that photocopying is legal and with remuneration to publishers. Facilitating the distribution of paid-for authorized photocopies is a path that takes care of the interests of all the stakeholders simultaneously. I think it is a fallacy to frame the issue as one of academics or students against publishers. On the contrary, it is one of how academics, students and publishers can all work together and contribute to an ecosystem in which academic content is available and accessible in the market.That system, to my mind, involves facilitating the distribution of legal copies of works and, where required, legal photocopies of works.

  Q:What about dealing with pirates? You have been supporting publishers with taking some action against book piracy. How has this panned out and what is the way forward?

  Saikrishna: Our firm has been involved in a number of piracy actions which have helped stem the sales of pirated copies of books.As long as there exist pirated copies, it is worth considering continuing to engage in actions against piracy including actions in court. Copyright infringement is, of course, both a criminal offence and a civil wrong under Indian law. Where copyright is infringed on a commercial scale, it is worth advocating for the routine levy of punitive damages to the extent that it becomes unprofitable to engage in copyright piracy as a trade.

  Q:What do you see as the main roadblocks or challenges? Saikrishna: Following are the main challenges:

  1.The ambiguities in the law or in the exceptions

  Indian copyright law in terms of its statute, the 1957 Indian Copyright Act, is not particularly ambiguous, although there has been a trend in recent years to go beyond the letter of the statute, particularly with

  reference to acts which may be executed in relation to content without the permission of the copyright holder.To my mind, this brings in a great deal of uncertainty to this realm of the law since it is very difficult to predict how a court would view an act of alleged infringement.

  2. Lack of incentives to implement the law

  There isn’t so much a lack of incentives to implement the law as there is of resources.That said, there are relatively cost-effective steps which can be taken to facilitate the implementation of the law, such as the creation of comprehensible, functioning and accessible national databases to help track copyright infringement on a commercial scale when it takes place across state boundaries, which it often does.

  3. Lack of awareness of the importance of copyright and of the law among key stakeholders

  Awareness of copyright law and infringement is low, as is awareness of the detrimental effects of piracy on authors.This isn’t a concern so much amongst publishers and authors as they deal with copyright routinely and understand its implications, but it is a concern when it comes to members of the general public who often do not understand how copyright works and who see the acquisition of copyrighted content primarily in terms of the money they part with for a specific copy, pirated or not. It is worth engaging in campaigns to increase awareness both in schools and in other public fora to explain the benefits of respecting copyright. One can only hope that with increased awareness, more members of the public would shy away from buying pirated copies which decrease authors’ incomes and which inhibit academics and culture from flourishing by straining publisher revenues, and consequently publisher investment in the creation of new works.

  Q:What, according to you, can be done to address these? Saikrishna: Addressing the proliferation of copyright infringement has to involve a multifaceted programme.The motivations and understanding of the various persons who engage in copyright infringement differ.

  Commercial infringers, for example, are motivated by the desire for profits which they likely know are illegitimate. On the other hand, the individual consumer of a pirated work of fiction, for example, may simply be driven by the benign and even laudable aim of participating in the literary culture without necessarily understanding what the implications of consuming pirated works are.

  Countering copyright infringement therefore cannot fairly treat all those involved in infringement on a par, and responses have to be tailored to their motivations.That is why a programme which seeks to counter infringement must encompass a range of actions right from the initiation of legal proceedings, where they are warranted, to increased interaction with the public to educate it about copyright law.

  Q: As someone who has worked long and hard on this issue, with the publishing community and other industries as well, what would you say are the best practices that can be picked up and implemented?

  Saikrishna: There are, broadly speaking, three arenas in which publishers and those in comparable positions in other copyright industries can take action. First, invoking copyright law, particularly in the case of commercial infringement. Second, raising awareness amongst the public. And, third, revisiting pricing models wherever necessary to ensure that they are tailored to the Indian market.These lines of action all have to be coordinated with each other, and it is worth having a point person to oversee the high-level response of a company to the occurrence of copyright infringement.

  saikrishna rajagopal is Managing Partner of Saikrishna & Associates, a firm in the field of intellectual property. He has worked on a variety of intellectual property disputes in the past two decades and has appeared in many landmark cases. He has appeared before a Standing Committee of Parliament deposing with respect to the

  2012 amendments to the Copyright Act, 1957.

  28 PuBlIshIng ethICs

  “Publishers are custodians of scholarly record” Sushmita Das

  Every year, Indian scholars contribute a size
able amount of information to the already existing pool of knowledge in the form of books, magazines, academic journals and new articles.As per UNESCO’s statistics, about 90,000 books were published in India in 2013.Another survey conducted jointly by Elsevier Publishing Group and the Government of India[1], showed that in 2013, India’s scholarly output accounted for 4.4 per cent of global academic output, with a growth rate of 14 per cent, while the world average growth rate was 4 per cent.The study also reported remarkable impact of these contributions from India and the growth in impact showed an increase from 0.8 per cent to 1.2 per cent between 2009 and 2013.A few other reports, such as the Nature Index[2], also rate India among the contributors of high-quality scientific publications.

  The high growth rate in scholarly contributions from India can be attributed to numerous factors such as increase in literacy rate, high competition in the job market, and amendments in governmental policies and guidelines for publication. In the current scenario, scholarly communities feel that there is an ‘inbuilt pressure’ to publish as appointments, promotions, and tenure are linked to publications. Early-career researchers are even more under pressure as many of the universities offering PhD programmes state that students must have one to three publications before they can defend their thesis.

  With the pressure on scholarly communities to ‘publish or perish’, publishers are witnessing a surge in scholarly submissions. Publishing

  styles are changing dramatically with traditional publishing models being upgraded and new ones innovated to cater to the submissions.As ‘gatekeepers’ of this huge influx, it has become imperative for publishers to put in place robust publication processes and maintain ethical standards to thrive on the delivery of high-quality and trusted content.

  Over the past few years, numerous incidents of scholarly misconduct by authors, sometimes high-profile scientists, have been reported in the Indian media.A study by Professor T.A.Abinandanan[3] reported that about 70 scholarly articles published from India have been retracted or withdrawn from peer-reviewed journals due to various types of publishing misconduct ranging from plagiarism to self-plagiarism and data fabrication. Numerous other reports show that the most common issues are authorship disputes, allegations of plagiarism and dual submission, allegations of data mishandling/fabrication, author/reviewer conflicts of interest, reviewer bias, or an editor adding content without the consent of the author. Manipulative and intentional behaviour could be one of the reasons for the rise in misconduct, but aspects such as the lack of awareness and training on publishing ethics, ignorance, and lack of affordable editorial services, statutory controls and clear government policies also contribute towards these practices.

  Publishing ethics are guidelines that authors, editors, and reviewers should adhere to and comply with during a scholarly communication. It is a collective responsibility of all stakeholders that high standards of publication process are ensured and the integrity of the scholarly record is maintained.

  Authors should ensure that they have substantially contributed to the conceptualization, design, data analysis, drafting or revising of the article, and its final approval for publication. Unethical practices of ‘gift authorship’ raise serious concerns when an inexperienced author believes that adding an academic heavyweight’s name as co-author would help in getting the article reviewed more favourably. It is extremely important that all co-authors consent to the work presented for publication. Duplicate submission or publication of the same or identical work in one or more publication is considered unethical and is a serious violation of copyright law.

  The role of reviewers in the publication process is very important as

  they are the experts in the field of the submitted work.Their appraisal

  sushmita das 141 of the work and feedback help in improving the quality of the work. The comments aid the editors to make an informed decision on the submitted work. Reviewer misconduct can range from minor issues, such as rude or unconstructive reviews to major issues, such as the appropriation of author’s ideas or data. If the manuscript under review is that of a rival or a competitor, wrongful practice by the reviewer, such as submitting a biased review or inappropriate comments, could lead to delay in publication. It is very important that the reviewers disclose competing interests, such as working in the same area of research or belonging to a competing institution.

  Editors play a vital role in safeguarding the integrity of the peerreview process and ensuring that all submitted manuscripts get the same treatment during review and publication.The editor must protect the confidentiality of all material submitted for publication and all communications with reviewers, unless otherwise agreed with the relevant authors and reviewers. It is ethically important for the editor that she must not be involved in decisions about papers which she has written herself or have been written by family members or colleagues or which relate to products or services in which the editor has an interest.

  Editors should ensure that the policies, guidelines and instructions to the authors are clearly mentioned in their journals.They should keep themselves abreast of the possible misconducts and should know how to detect and deal with them.They should sign up with organizations such as the Committee on Publication Ethics (COPE) and International Committee of Medical Journal Editors (ICMJE), which provide advice on all aspects of publication ethics and on how to handle cases of research and publication misconduct through guidelines, case studies, flow charts and sample letters.They should collaborate with their publishers and publishers should provide editors with online peer-review systems like ScholarOne Manuscripts and Editorial Manager to allow authors, editors, peer reviewers and editorial offices to manage the submissions and peer review of manuscripts. Software such as Crossref Similarity Check, powered by iThenticate; and Turnitin could be used in preventing scholarly misconduct

  and, specifically, unattributed copying of previously published work. Publishers are the custodians of scholarly record and any allegations of misconduct could diminish their reputation and trust among the scholarly community and society at large. Publishers are ensuring that publication processes are robust and the best practices are being followed by authors, reviewers and editors, so that the content produced by them matches global standards.To ensure publishing ethics, publishers conduct awareness and training programmes at regular intervals.They disseminate material on ethical publication through both print and online media. Authors are made aware of the procedure and practices that are required to be followed while submitting their work for publication. Editors are trained on how to handle potential instances of misconduct, how to notify authors about the risks and how to contribute in preparing the procedure and policies of the journal they are handling.The publishers often play an important role when ethical questions arise and are better equipped to provide legal review and counsel, if necessary.

  Elizabeth Wager, ex Chairperson of COPE, noted that all players in scholarly communication have ethical responsibilities and complacency in compliance will not reap substantial benefits. Efforts are required from all stakeholders to fulfil the aim of providing quality content to the readers.

  [1] International Comparative Performance of India’s Research Base 2009–2013. Link: http://www.nstmis-dst.org/PDF/Elsevier.pdf

  [2] Subhra Priyadarshini. 2016. Nature Index India analysis reports surge in publication. Link: http://blogs.nature.com/indigenus/2015/12/nature-index-india-analysisreports-surge-in-publication.html

  [3] T.A.Abinandanan. 2013.Scientific Misconduct in India:An Analysis of Retracted Papers in PubMed. Link: http://www.imsc.res.in/~ethicsmeet/abstracts/abinandanan. html accessed on 22nd Dec 2017

  sushmita das heads the Journals Peer Review team for Taylor and Francis India. Her team handles over a hundred journals and is responsible for authenticating articles, peer review and publication. She has trained journal editors and authors on peer review systems, and has led workshops on publishing ethics, plagiarism and copyright. She has 17 years of experience in
knowledge

  management and publishing functions. 29

  freeDom to PuBlIsh

  “Publishers must have the will and the ability to challenge established thinking” José Borghino and Kristenn Einarsson The International Publishers Association (IPA) is committed to defending and promoting the freedom to publish, which is under worldwide siege today. Freedom to publish has been one of the IPA’s two primary policy drivers since the creation of the organization in 1896—the other being the promotion of copyright. Our organization believes that the unique contribution of publishers to enabling freedom of expression, debate and dialogue by disseminating the works of others, deserves recognition and protection.

  If we are to create and maintain free, healthy societies, then publishers must have the will and the ability to challenge established thinking, preserve the history of our cultures, and to make room for new knowledge, critical opposition and challenging artistic expression.

  Publishing has always operated in a social and cultural environment that is constantly changing and where the publishers themselves— through their commissioning or selection of material and as a result of the works they decide to disseminate—influence both what is discussed in society and how those works are received. Freedom to publish means that publishers must be allowed to publish all that they deem worthy of publication, even and perhaps especially if those works challenge the boundaries established by the society they operate in. As the French Enlightenment philosopher and writer Voltaire is often credited with saying:‘I disapprove of what you say, but I will defend to the death your right to say it.’

  The conditions governing and restricting freedom to publish vary around the world. In some places, it is governments and state regimes that prevent the publication of material or works deemed to be ‘dangerous’ or ‘inappropriate’. In other cases, there are pressure groups (religious, social, commercial) trying to prevent publication of certain information. Increasingly, large technology companies are influencing, often secretly or behind our screens, what we as readers and consumers can and can’t see.The significance of this sometimes overt and at other times insidious manipulation of what we are allowed to read is simple: laws that prevent freedom to publish must be constantly challenged—there are actually very few instances where public welfare is increased or maintained by the blocking, removal or censoring of information.