Copyright Infringement: Who Is Responsible, Author or Publisher?

Plagiarism presents a problem more tangible than academic integrity for publishers and authors because in many cases plagiarism results in copyright infringement, making both parties vulnerable to litigation and financial losses. When a publisher assumes the rights to a manuscript from an author through a copyright transfer agreement, the publisher also assumes the responsibility to ensure that the manuscript does not infringe upon the rights of other copyright holders. US copyright law holds publishers accountable for publishing any material that has been previously published in any medium.1 Ignorance is not a valid defense in copyright litigation, so publishers can be sued by a third party for copyright infringement if an author’s manuscript was copied partly or wholly from a copyrighted original.2
A publisher’s responsibility in copyright infringement is complicated by not having produced the infringing material. Conversely, an author’s responsibility in copyright infringement is complicated by having transferred the copyright to the publisher. Because copyright law focuses more on defining copyright infringement than on who is responsible for infringement after it has been identified, selecting the target for a copyright lawsuit is completely up to the third party plaintiff and his legal counsel. A third party plaintiff can choose to sue the infringing author or the publisher for publishing copyrighted material.
To strengthen their legal position, many publishers include warranty and indemnity clauses in the copyright transfer agreement. Usually, by agreeing to a warranty clause, the author guarantees that his manuscript contains only material that is original or in the public domain and free from any copyright. Often the author also promises to indemnify the publisher if the manuscript becomes a legal liability; an indemnity clause makes the author financially liable if he breaks the warranty clause. Here is an example of an indemnity clause from an academic publisher:

You agree to hold the University, its officers, agents, and employees harmless from any claim, action, or proceeding alleging facts that constitute a breach of any warranty enumerated in this Agreement and further agree to indemnify and hold harmless the University, its officers, agents, and employees against expenses and attorneys’ fees that may be incurred in defense against each claim, action, or proceeding.3

A contract, however, cannot prevent copyright litigation, so warranty and indemnity clauses usually do not come into play until after a lawsuit is settled. If a publisher is sued for copyright infringement and loses, the publisher can then sue the author for breach of contract and potentially recover damages awarded in the original lawsuit. The existence of warranty and indemnity clauses means that even though publishers are sued for copyright infringement more often than authors, authors are not free from liability. The only way that authors and publishers can avoid copyright litigation is by avoiding copyright infringement in an active, collaborative effort.
The Ochsner Journal uses plagiarism detection software on all submitted manuscripts to identify potential copyright issues and works with its authors to resolve them before publication.

References
1. University of Chicago. The Chicago Manual of Style. Chicago, IL: University of Chicago Press; 2010.
2. U.S. Copyright Office. “Stopping copyright infringement.” http://copyright.gov/help/faq/faq-infringement.html. Accessed January 25, 2015.
3. University of California Berkeley School of Law. “Author indemnification clause.” http://www.law.berkeley.edu/5141.htm. Accessed January 25, 2015.

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