Republishing an Article Published in a Now-Defunct Journal

The (anonymised) question below is fairly self explanatory. As a relatively new journal editor, I have not had to face this position before. It looks like the author is not certain whether the journal holds copyright (but I assume it is prudent to assume that they do).

Assuming that everything stays as unclear as it currently is I then assume I look at the original and the new manuscript and make a judgment on the degree of change produced by "updating and significantly revising".

I would be grateful for any advice you can offer.

Many Thanks,

Martin Eccles
Co-Editor in Chief, Implementation Science

“Colleagues and I are working on updating and significantly revising a paper we published in 2003. This was a … journal and was published by…which was I think associated with….We want to submit it to [the journal that I edit]  but are having difficulty finding anyone to obtain copyright permission from as follows...”

The journal appears to have not gotten past its first issue and we have been unable to find the journal, its publisher or elicit a response from…,the then editor. I've included at the end of this note an e-mail I sent in mid December. I've had our librarian search high and low. I have consulted an editor I've worked with for some years on how I can obtain permission to use sections of the paper and her response is (excerpted):

Just a "guess" related to your question about copyright (because you are now into international copyright law, which has changed some, especially as it relates to electronic publication, but which is still still based on the Geneva Copyright agreement -- although I do not know if … was affected by this): You probably can NOT use significant chunks of it without permission..... Further, you might want to send a query letter and ask the editor of the journal to which you propose to submit the revised article and ask what he or she thinks. But it does look like a great article (from reading the abstract, scanning it, and looking at the reference list). I can see why you might want to use sections -- but, because you originally wrote it, you could paraphrase, and you could tighten, and you could refer new readers to your own … website.

You could make it clear that this updates all the information. Given that you are doing all that, I suspect a new editor would be pleased to use it. But I would ask before I did a lot of work.

A significant motivation to update, revise and submit it is to make it accessible. In its current form it is nearly completely inaccessible to anyone and I get fairly frequent requests for it.

We are quite well along with the revision and have added a psychometrician who is helping us bolster that aspect of the paper.

Dear …     

I have a question re copyright. Our group wishes to write an update to the paper in the one issue we can find of …. After much searching I believe this journal must never have gotten past its first issue. Because no one we know can find this journal and thus cannot access it, I would like to use much of the content in the 2003 paper in the updated one but cannot figure out how to or who to ask for copyright permission.           

Can you assist me? Can you confirm the status of the journal?

Does the…hold copyright and if so how do I reach them and to whom do I speak?
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Did they try Copyright Clearance Center?

Sincerely,

Kimberly Fradette-Taylor
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I see a few ways this might be handled.  First, (as was noted) telling the editor(s) of the new journal about the ms's past is always a good plan. Second, a note included with the new version (if published) to the effect that the article is a significantly revised version of an article originally published in XX journal in XX year might also cover all bases. Finally, if the authors REALLY want to cover themselves, they could also include a note saying that attempts were made to contact the original journal to obtain permission to re-use the article (better wording will be needed, of course!) and these attempts were unsuccessful. On very rare occasions we have done this in our journal, where we have an arts section that uses excerpts from literature, etc.

Sometimes we've had to throw in the towel, but we always keep a paper trail and have published "we tried, really we did" statements in hopes of covering ourselves.

Of course, if the revised ms. is truly vastly different, no such statements, etc. are really needed. Always a tough call, though.

Lisa Dittrich
Managing Editor, Academic Medicine
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This seems pretty straightforward to me. Copyright is irrelevant here.

The only reason to "update" an article is if there is new information/data to report. If so, then the article should be rewritten completely, referring to the old article as needed. It is inappropriate to reprise lots of text from the original article. If the authors wish to quote something from the original article, they should do so in quotes and reference the original article. If the "updated" article is so close to the original that copyright issues come into play, then there is not sufficiently new data to justify the "update." It becomes duplicate publication.

Bill Tierney
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Bill's response led me to wonder about the following scenario. Let's assume that instead of a complete updating of the material the author is merely translating, with little or no updating, a significant portion of the literature review and discussion of the earlier published article, but that the journal in question IS currently available. Let's also assume that the new article does provide new data.

I assume that if the editor felt that the new data deserved publication then copyright permission would be relevant in such a case. But what about the citation of the earlier work? In an earlier discussion, it was felt that the use of quotations was not a desirable approach to these types of situations. Would an 'author note' with a citation to the original source that clearly indicates to the reader the extent of the translated material, noting specific paragraphs and/or pages that constitute the new material, be an acceptable step in such a case?

Miguel Roig
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Another reason to update and republish this particular article is that it is essentially unavailable to the public or field because the journal folded. It sounds like the authors intend essentially a revised republication. Thus it would need permission from the editor it was submitted from and copyright release from the original journal, would it not? The editor should be accessible and the publisher around to give a copyright release. I would think a footnote saying that this a revision and expansion of an already published piece (with full citation) would be enough—no quotations. (Like the second edition of a book?) However, I don't know why a new editor would choose to publish this unless both the new and original material was quite important.

Nancy Darling
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This is a major justification for journals sending content to PubMed Central. If a journal folds, the content is available anyway. Editors should push for this: when our journal's sponsor put out an request for proposals for a new publisher, we (the editors) insisted that the contract require that the publisher provide content to PubMed Central for open access a year after initial publication. Not to get into a lengthy discussion about open access, but by insisting on putting journal content in PubMed Central, we have created a permanent archive for the journal that is maintained at US Government cost.

Bill Tierney