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Martin Paul Eve

Professor of Literature, Technology and Publishing at Birkbeck, University of London

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An interesting discussion today with one of my senior publishing technology developers, Mauro Sanchez, led me to thinking about the rights of presentation and author rights to object to derogatory treatment of work published in scholarly journals. Namely: in the digital age, if one has a publication in a journal, what rights do the publishers have to change that platform and the underlying objects of publication?

In the digital age – well, in fact, in all ages – our access to scholarly published material is highly mediated. Software and hardware interpretation, beyond the control of authors and publishers, sits between the physical media state (SSDs, HDDs etc.) and the illuminated pixels on a VDU that we call the published article. Updates to end-users’ software and hardware can cause arbitrary breakage of the presentational rendering of scholarly content, even while the underlying binary representation remains consistent. These are core issues in digital preservation.

At the same time, though, publishers need to continually update and maintain their platforms; not least to ensure that security vulnerabilities are patched but also because they want to introduce new features. This can result in presentational and functional differences in the display of scholarly articles.

What are the rights of the author to object to “derogatory treatment” of their work in this respect? And who is responsible? Browser vendors if they break the rendering? Publishers if they change the platform? There are instances where breaking the display of an article could change its fundamental meaning (consider mathematical formulae or line breaks in poetry). But what, then, if the publisher alters the underlying XML so that it renders correctly when browser changes have broken the display? This would mean that the presentation would be fixed, but the underlying article would itself be different.

Does it also make a difference if the author or other party has paid an article processing charge? It might, contractually. Consider a case where changes to a publisher’s technical platform results in search engine rankings dropping or fewer indexes covering the material. Alternatively, consider a case where changes to the platform break digital preservation methods. Each of these might be considered to be lowering the quality of service for which a party paid.

We have these challenges when migrating journals to OLH. Authors have, most likely, never had any contractual term set for what the publisher can do with the display of the digital artefact. When this changes, it is theoretically a tricky legal situation. I note though that, in theory, this is a tricky legal area. In reality, I do not suppose many cases would arise where this would pose a practical problem as nobody would object, provided that the publisher were acting in good faith. Such issues of authors’ rights and copyright are always along a spectrum of risk judgement rather than absolutely clear cut. It might be worth, though, considering contractually codifying the right to migrate material to any future platform that is the canonical source of a “journal” and stipulating the various elements that can affect presentational output and that are considered acceptable mutations.