[Open-access] Wiley have been caught incorrectly paywalling & selling (Dirk Verdicchio)

Fri Mar 27 10:18:18 UTC 2015

I think there are two separate issues here which are at risk of being 
conflated:

The first is whether this is “legal” (or potentially violating contracts 
etc etc). I’m sure in some cases it is possible that a line has been 
stepped over, but equally I doubt very much that anyone is going to take 
these issues to court.

The more important question from my perspective is whether this is 
acceptable behaviour from a major service provider. Many on this list 
would be perfectly comfortable with someone taking CC BY licensed work, 
packaging it up (perhaps in some premium print edition) and charging for 
that, indeed that’s the point of licensing in this way for many of us. But 
regardless of whether it is allowed or not I think many of us would be 
uncomfortable with the ethics of /anyone/ merely taking open content and 
reselling it as is. 

That said, we expect fly by night operators to exist and probably the 
degree of damage done by a dodgy republisher is limited in most cases. A 
tax on those who can’t use a search engine to find the free copy is an 
acceptable price to pay for the benefits of open content in my view. 
However we can reasonably expect higher standards of behaviour from those 
who position themselves as the guardians of standards in scholarly 
communication. This is not a legal/contractual issue in my view but an 
ethical and reputational one.

More broadly this is a trap we often get into in this space. We confuse 
the legal limitations/rights associated with licenses and contracts with 
the /social signalling/ of expected behaviour. For instance many people 
choose an NC license, not because they would ever sue anyone, but because 
they want to signal their expectations of downstream users. A lot of the 
problems with both NC and ND arise because of the way that the legal 
issues that the licenses create (e.g. What exactly is a commercial 
activity in legal terms?) interact with the social signals that people are 
trying to send (I don’t want you to sell my stuff but I’m happy for you to 
use otherwise).

The problem is that this leads us into legalistic questions of “whether 
this is allowed” rather than the much more important question of “whether 
this should happen”. To put it another way, focussing on the legal issues 
externalises the problem, passing it to courts and judges to work out, 
when what we should be asking is “what are the values of our community 
around these issues”. 

In turn refocussing on the values question lets us take a pragmatic 
approach - the fly by night small operations are an irritation but not a 
major problem, but when a big player is doing this systematically, even if 
that is by mistake, it’s a serious issue.

Cheers

Cameron

On 27/03/2015 09:56, "Mike Taylor" <mike at indexdata.com> wrote:

>Hold on, here.
>
>What these predatory publishers are doing (selling access to OA
>articles) may -- MAY -- be technically legal from a copyright/licence
>perspective.
>
>It surely is NOT legal from a contract perspective. They have accepted
>APCs from authors in exchange for providing free, unlimited access to
>the published work, and are not fulfilling their side of the bargain.
>
>If I were an author who had paid an APC for one of these articles, I
>would certainly write a stiff formal letter requesting the return of
>the funds. (Of course it doesn't arise in my case, since I don't use
>predatory publishers in the first place; and neither should anyone
>else.)
>
>-- Mike
>
>
>
>
>
>
>On 27 March 2015 at 09:35, Bjoern Brembs <b.brembs at gmail.com> wrote:
>> On Friday, March 27, 2015, 10:20:41 AM, you wrote:
>>
>>> Now it has happened in 2015 with at least 3 of the major
>>> legacy publishers: Elsevier, Wiley and Springer
>>>  I believe these known incidents are just the tip of the iceberg.
>>>  Something needs to be done about this. Libraries and
>>> research funders sorely need to address this issue!
>>>  We simply cannot trust legacy publishers not to
>>> re-paywall content on whim at any time they choose.
>>> Penalties for this 'accidents' need to be demanded to
>>> properly incentivize the paywallers to take more care with their 
>>>actions.
>>
>> I'm not aware of all instances where this has happened, but for some 
>>reports I'm getting the impression that the publishers are only selling 
>>papers which are available free of charge elsewhere? I'd see this as a 
>>grey area (as long as no licenses are violated).
>>
>> For instance, as long as source and authors are mentioned, you can 
>>sell, e.g., a topical collection of OA articles. Someone has to curate 
>>the collection and it's perfectly fine to pay that curator for their 
>>work.
>>
>> This example shows that the mere fact that a publishers is selling OA 
>>articles may be a *necessary* condition for an offensive or even illegal 
>>act, but it is by no means *sufficient*. There are plenty of 
>>possibilities where selling OA articles is perfectly fine, even desired!
>>
>> The really egregious instances are those where no version of the 
>>article is available free of charge anywhere, because the publishers 
>>themselves have not made the articles published OA with them accessible. 
>>I've always understood that this is what Elsevier and Wiley have done: 
>>charging for articles that should be accessible free of charge from 
>>their sites. The most recent examples and discussion, however, were 
>>described in a way that have made me less sure about that.
>>
>> Have I misunderstood everything? Are these all just examples of 
>>publishers selling articles from other sources? Or is each instance a 
>>little different?
>>
>> Sorry for the confusion,
>>
>> Bjoern
>>
>>
>>
>>
>> --
>> Björn Brembs
>> ---------------------------------------------
>> http://brembs.net
>> Neurogenetics
>> Universität Regensburg
>> Germany
>>
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