publications - How can Springer and Wiley put a 12 month embargo on posting post-review revisions to the arXiv and similar?

This question was inspired by the recent question on posting to Academia.edu.

The general copyright policy for Springer, as listed on SHERPA/RoMEO, is that one can post a pre-review version to the arXiv but one must wait a year after publication before posting an post-review copy to any open repository (and one can never post the final publisher's copy):

This seems to precluding posting a post-review update to the arXiv until a year after the journal article is published. Wiley appears to have a similar policy.

To me this policy seems crazy, because it means that if you actually obey it, you cannot post a revised version to the arXiv for over a year -- and thus you are obliged to leave uncorrected any mistakes that are uncovered during the review process for a protracted period of time. That's bad scholarship at best. I don't see how anyone could comply with this policy in good faith.

It also raises a major issue for peer review. Why one should review for free for a journal that won't let the author share the results of your review with the community in as timely a fashion as possible?

Moreover, I don't see how this policy could possibly be enforceable, due to the timing of the copyright transfer agreement. The author does not transfer the copyright until after submitting the final revised version to the publisher. I am no lawyer, but it seems to me that the publisher has no copyright claim over the post-revision version of the manuscript until the author has actually returned the signed copyright transfer agreement. As best as I can tell, this leaves a generous time window during which the author can freely submit a post-review version of the manuscript to the arXiv without committing any kind of copyright violation whatsoever. The only option open to the publisher would be to refuse to publish the paper in retaliation -- which they are extremely unlikely to do.

So my question is simply this: Am I missing something here? Is there any way that such a policy could be legally enforceable if one posts the post-review version prior to signing the copyright transfer agreement?

Answer

The copyright agreement does not require that you leave your mistakes uncorrected, it simply requires you to make corrections in a particular way. The simplest method, if you discover mistakes in the published version, is to distribute some note of correction that specifically addresses your original error, which can be done without violating the copyright agreement. The copyright agreement may allow you to post post-review versions of the paper, since the agreement may contain a clause that "Prior versions of the Contribution published on non-commercial pre-print servers like ArXiv/CoRR and HAL can remain on these servers and/or can be updated with Author’s accepted version". There is always a clause where the author warranties that the work has not been previously published (which includes online distribution via ArXiv), and this is why they need to expressly say that you are also permitted to post the submitted version.

There are two notions of "enforceability" relevant to your agreement with the publisher. The stronger one involves litigation, where the publisher sues you for damages (when you breach a contract). You should hire a Swiss lawyer to get advice on whether Springer is likely to prevail in court. The other notion is "having negative consequences". A simple negative consequence would be that Springer refuses to publish any more of your work, if you flagrantly violate the terms of the agreement. Whether or not your breach involves copyright violation depends on whether or not you give them a license to publish, versus transfer copyright. (In interpreting the Lecture Notes in CS agreement, you would want to consult the Swiss attorney for a precise interpretation of granting and assigning the exclusive, sole right to copy).

Your comment about the review process is tangential, and suggests that you are unaware of review protocol, You ask "Why one should review for free for a journal that won't let the author share the results of your review with the community in as timely a fashion as possible". Reviews are not only anonymous, but also privileged communication between the reviewer and the editor (often -- though not always -- shared verbatim with the author). So you should not distribute reviewer comments, unless that is expressly permitted by the journal.