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

Peter Murray-Rust peter.murray.rust at googlemail.com
Fri Mar 27 09:44:08 UTC 2015 

I agree. I believe the publishers have a "duty of care" to a number of
different parties, some legal, some moral. IANAL but I see at least the
following parties.
AUTHOR
FUNDER
AUTHOR_EMPLOYER
AUTHORS_PUBLISHER
SECONDARY_PUBLISHER
SUBSCRIBER
NON_SUBSCRIBING PURCHASER
NON_SUBSCRIBING READER
RE_USER

There are several different explicit and implied legal and moral contracts
in this. In most cases the details of these contracts are not public and
may even have been lost.

In the case of Wiley it would seem that
AUTHOR had agreed with AUTHORS_PUBLISHER on a form of publishing. I don't
know the details but it would seem that after a certain time the
publications would be become publicly readable indefinitely. This may have
been a formal agreement or it may have been good will or even more fuzzy.
So it's possible that this is not technically a legal breach (and , of
course, jurisdiction will matter). It is almost certainly a moral breach
and that authors' moral rights may have been lost. I would argue that a
publisher who bought or otherwise acquired a journal had a legal and moral
right to uphold the AUTHOR rights.

In the case of paywalled "Open Access" It is clearer. AUTHOR contracts with
AUTHORS_PUBLISHER and possibly AUTHOR_EMPLOYER and possibly FUNDER to make
the article readable to NON_SUBSCRIBING READER for ever. HeatherM implied
that CC-BY-NC-ND would allow AUTHORS_PUBLISHER to paywall the article. I am
sure this would be a legal breach of the AUTHOR's contract. It *does* allow
SECONDARY_PUBLISHER (anyone other than AUTHORS_PUBLISHER) to paywall the
article and that simply means "caveat NON_SUBSCRIBING PURCHASER".

In the repeated case of Elsevier paywalling Open Access articles, I believe
this is a prima facie breach of legal and moral contract and that the
AUTHOR, FUNDER, AUTHOR_EMPLOYER have all been legally deprived of their
rights, with no redress. Since the evidence suggests that this is
continuous negligence where there is little attempt to avoid future
occurrences I would support the idea of a class action for punitive
damages. If the publishers were selling cars, food, pharmaceuticals their
directors would now be in court.

I think the publishers' associations are now totally discredited. If the
STM publishers cared about this they would have acted over the last 5 years
and created a code of conduct with redress for repeated infringement. I
invite them to argue why they feel the current situation is sufficiently
acceptable that they take no public action.

I expect to return to this...


On Fri, Mar 27, 2015 at 9:20 AM, Ross Mounce <ross.mounce at gmail.com> wrote:

> Thanks Dirk.
>
> I encourage more people to come forward with incidences of this type.
>
> It happened in 2012
> It happened in 2013
> It happened in 2014
> 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.
>
> Best,
>
> Ross
> On Mar 27, 2015 9:27 AM, <dirk.verdicchio at ub.unibe.ch> wrote:
>
>> Hi all
>>
>> I just wanted to mention that Springer does such things too. We
>> discovered this few days ago. Springer charges 39.95 USD for an article
>> from Biologia which is available from de Gruyter for free with a CC
>> BY-NC-ND license. We contacted one of the authors in order to get more
>> information about the signed agreements in order to decide if we are going
>> to involve the university's legal services. But I fear that Springer is
>> acting legally sound here: Biologia is a joint venture between Springer, de
>> Gruyter, and others. If the authors have given the publishers the right to
>> exploit their article commercially, and I believe they have done so, then
>> Springer is allowed to sell it.
>>
>> This does not only show that the big publishers don't care about their
>> author's wishes.  It may also point towards a shortage in the CC licenses,
>> which cannot prevent the publishers form selling OA articles. Since the
>> publishers have proven that they see OA merely as an additional income
>> source we perhaps need a license which can prevent this.
>>
>> Link to de Gruyter:
>> http://www.degruyter.com/view/j/biolog.2014.69.issue-11/s11756-014-0465-6/s11756-014-0465-6.xml?format=INT
>> Link to Springer :
>> http://link.springer.com/article/10.2478/s11756-014-0465-6
>>
>> Best,
>> Dirk
>>
>> ---
>> Dr. Dirk Verdicchio
>> Universität Bern
>> Universitätsbibliothek Bern
>> Koordination Open Access
>> Tel. +41 (0)31 631 9595
>> www.ub.unibe.ch
>>
>>
>>
>> -----Ursprüngliche Nachricht-----
>> Von: open-access [mailto:open-access-bounces at lists.okfn.org] Im Auftrag
>> von open-access-request at lists.okfn.org
>> Gesendet: Donnerstag, 26. März 2015 23:00
>> An: open-access at lists.okfn.org
>> Betreff: open-access Digest, Vol 39, Issue 20
>>
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>> Today's Topics:
>>
>>    1. Re: Wiley have been caught incorrectly paywalling & selling
>>       thousands of articles (Rens van der Heijden)
>>    2. Fwd: Wiley have been caught incorrectly paywalling & selling
>>       thousands of articles (Subbiah Arunachalam)
>>
>>
>> ----------------------------------------------------------------------
>>
>> Message: 1
>> Date: Thu, 26 Mar 2015 19:11:25 +0100
>> From: Rens van der Heijden <rens.vanderheijden at uni-ulm.de>
>> To: open-access at lists.okfn.org
>> Subject: Re: [Open-access] Wiley have been caught incorrectly
>>         paywalling & selling thousands of articles
>> Message-ID: <55144BCD.5040509 at uni-ulm.de>
>> Content-Type: text/plain; charset="windows-1252"; Format="flowed"
>>
>> Dear all,
>>
>> First of all, thank you for your efforts. Exposure is important, and as
>> you've written it leads to some kind of self-correcting behavior.
>>
>> However, let me play devil's advocate for a moment.
>>
>> On Fri, Mar 27, 2015 at 12:48 AM, Ross Mounce <ross.mounce at gmail.com
>> <mailto:ross.mounce at gmail.com>> wrote:
>> > Wiley recently (legitimately) took control of a society journal called
>> > Limnology and Oceanography from the Association for the Sciences of
>> > Limnology and Oceanography (ASLO). The association makes clear in its
>> > guidelines for the journal that all articles are placed into Free
>> > Access after three years:
>> > http://aslo.org/lo/toc/
>> First of all, _free access_ does not necessarily imply _only free access_
>> or _free access and selling it is forbidden_. I've tried to access the link
>> on this page to get more information (license or so), but it looks as
>> though the page no longer exists (it directs me to a site map). I checked
>> one of the Journal's OA links (at Wiley, so the source is not objective)
>> and picked a random article from the 80s. This article has the notice:
>> ? 1985, by the Association for the Sciences of Limnology and
>> Oceanography, Inc.
>>
>> Thus, it seems as though the copyright belongs to the ASLO; depending on
>> how the contract between Wiley and ASLO works, it may be possible that
>> Wiley was (also) allowed to sell the articles. At the very least, it isn't
>> explicitly forbidden anywhere. This highlights the importance of
>> *clearly* identifying open access rules both between editors and
>> publisher, as well as publisher and reader (which has been a problem
>> exposed here in the past).
>>
>> On 26.03.2015 18:29, Chen-Yi Tu wrote:
>> > As a ASLO member, I do not think ASLO give Wiley permission to sell
>> > the open-access article. This is completely unacceptable.
>> It would be really great if we could have a look at the copyright
>> transfer form here. Something like this should be mentioned there
>> explicitly. Vagueness there means (IANAL, don't take my word for it) that
>> there may not be a legal basis to blame Wiley here.
>>
>>
>> To summarize my point: it is important for us not just to expose these
>> faults, but also to create awareness of these issues with editors, so that
>> "loopholes" like those I've described above do not allow a publisher to get
>> away with it.
>>
>>
>> Greetings,
>> Rens van der Heijden
>> Ulm University
>>
>> > A new journal from ASLO- Limnology and Oceanography Letter will also
>> > at the hand of Wiley. ASLO already makes it clear it will be
>> > open-access. Let's see how things turn out after the first issue.
>> > http://www.aslo.org/announce/lol_eic_search.html
>> >
>> > Best,
>> >
>> > Chen-Yi
>> >
>> > On Fri, Mar 27, 2015 at 12:48 AM, Ross Mounce <ross.mounce at gmail.com
>> > <mailto:ross.mounce at gmail.com>> wrote:
>> >
>> >     I didn't think we'd find more examples of 'false paywalling' so
>> >     easily or so quickly but here it is:
>> >
>> >
>> > http://rossmounce.co.uk/2015/03/26/wiley-are-charging-for-access-to-th
>> > ousands-of-articles-that-should-be-free/
>> >
>> >     Wiley recently (legitimately) took control of a society journal
>> >     called Limnology and Oceanography from the Association for the
>> >     Sciences of Limnology and Oceanography (ASLO). The association
>> >     makes clear in its guidelines for the journal that all articles
>> >     are placed into Free Access after three years:
>> >     http://aslo.org/lo/toc/
>> >
>> >     Yet for at least 2 months and 25 days, Wiley was selling access to
>> >     articles from Limnology and Oceanography for $45.60 USD (inc.
>> >     tax). I know this because I bought access to an article myself.
>> >     Volumes 1 (1956) to 41 (1996), consisting of thousands of articles
>> >     were on sale at Wiley.
>> >
>> >     I do not know how many people have bought access to one of these
>> >     affected articles in this period. Clearly a full investigation is
>> >     needed. Can we trust Wiley to self-report how many readers were
>> >     mistakenly sold access to these articles?
>> >
>> >     I put this in the past tense because they have just 'un-paywalled'
>> >     these articles in the last 30 minutes or so. I still have my
>> >     receipt from my article purchase though, so there is clear
>> >     evidence that this happened.
>> >
>> >     Best,
>> >
>> >     Ross
>> >
>> >     --
>> >     --
>> >     -/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-
>> >     Ross Mounce
>> >     Fossils, Phylogeny and Macroevolution Research Group
>> >     University of Bath, 4 South Building, Lab 1.07
>> >     http://about.me/rossmounce
>> >     -/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-
>> >
>> >     _______________________________________________
>> >     open-access mailing list
>> >     open-access at lists.okfn.org <mailto:open-access at lists.okfn.org>
>> >     https://lists.okfn.org/mailman/listinfo/open-access
>> >     Unsubscribe: https://lists.okfn.org/mailman/options/open-access
>> >
>> >
>> >
>> >
>> > --
>> > Chen-Yi Tu (Crystal)
>> > National Taiwan University
>> > Institute of Oceanography
>> > No.1 Sec. 4 Roosevelt Rd.
>> > Taipei, Taiwan 10617
>> > Email: tu.chenyi at gmail.com <mailto:tu.chenyi at gmail.com> /
>> > d01241003 at ntu.edu.tw <mailto:d01241003 at ntu.edu.tw>
>> >
>> >
>> >
>> > _______________________________________________
>> > open-access mailing list
>> > open-access at lists.okfn.org
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>> > Unsubscribe: https://lists.okfn.org/mailman/options/open-access
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>> ------------------------------
>>
>> Message: 2
>> Date: Fri, 27 Mar 2015 03:30:21 +0530
>> From: Subbiah Arunachalam <subbiah.arunachalam at gmail.com>
>> To: "open-access at lists.okfn.org" <open-access at lists.okfn.org>,
>>         open-science at lists.okfn.org,  LibLicense-L Discussion Forum
>>         <liblicense-l at listserv.crl.edu>
>> Subject: [Open-access] Fwd: Wiley have been caught incorrectly
>>         paywalling & selling thousands of articles
>> Message-ID:
>>         <CABghs+aKU_3sMH-9p6nO90C=c6OYZ1cqZZFdzwyP==
>> Du+LbkqQ at mail.gmail.com>
>> Content-Type: text/plain; charset="utf-8"
>>
>> ---------- Forwarded message ----------
>> From: Subbiah Arunachalam <subbiah.arunachalam at gmail.com>
>> Date: Fri, Mar 27, 2015 at 3:23 AM
>> Subject: Re: [Open-access] Wiley have been caught incorrectly paywalling
>> & selling thousands of articles
>> To: Peter Murray-Rust <peter.murray.rust at googlemail.com>
>> Cc: Ross Mounce <ross.mounce at gmail.com>, madhan muthu <
>> mu.madhan at gmail.com>, Heather Morrison <hgmorris at gmail.com>
>>
>>
>> Some time ago, if I remember right, it was reported that Elsevier was
>> indulging in such practice. Now it is Wiley. Should we approach the
>> Consumer International (or similar organizations) seeking justice and
>> punishment for the offenders?
>>
>> Arun
>>
>> On Thu, Mar 26, 2015 at 10:53 PM, Peter Murray-Rust <
>> peter.murray.rust at googlemail.com> wrote:
>>
>> > I must congratulate Ross on his incredible effort and patience in
>> > bringing to light completely unacceptable practices in scholarly
>> > publishing. At best the crime is "we don't give a **** about readers
>> > and libraries". It's more than incompetence - it's don't-care
>> > incompetence at best. and if it's worse than that ...
>> >
>> > There is no regulator for scholpub (IMO there should be) and academic
>> > libraries don't care - it's other people's money, not theirs. That's
>> > also unacceptable.
>> >
>> > I don't have a solution, because in UK I think the trading standards
>> > office has been discontinued otherwise we should take these cases there.
>> > It's close to, but not identical to Copyfraud, where people have sued
>> > breachers (though it's a great effort).
>> >
>> >
>> >
>> > On Thu, Mar 26, 2015 at 4:48 PM, Ross Mounce <ross.mounce at gmail.com>
>> > wrote:
>> >
>> >> I didn't think we'd find more examples of 'false paywalling' so
>> >> easily or so quickly but here it is:
>> >>
>> >>
>> >> http://rossmounce.co.uk/2015/03/26/wiley-are-charging-for-access-to-t
>> >> housands-of-articles-that-should-be-free/
>> >>
>> >> Wiley recently (legitimately) took control of a society journal
>> >> called Limnology and Oceanography from the Association for the
>> >> Sciences of Limnology and Oceanography (ASLO). The association makes
>> >> clear in its guidelines for the journal that all articles are placed
>> >> into Free Access after three years:
>> >> http://aslo.org/lo/toc/
>> >>
>> >> Yet for at least 2 months and 25 days, Wiley was selling access to
>> >> articles from Limnology and Oceanography for $45.60 USD (inc. tax). I
>> >> know this because I bought access to an article myself. Volumes 1
>> >> (1956) to 41 (1996), consisting of thousands of articles were on sale
>> at Wiley.
>> >>
>> >> I do not know how many people have bought access to one of these
>> >> affected articles in this period. Clearly a full investigation is
>> >> needed. Can we trust Wiley to self-report how many readers were
>> >> mistakenly sold access to these articles?
>> >>
>> >> I put this in the past tense because they have just 'un-paywalled'
>> >> these articles in the last 30 minutes or so. I still have my receipt
>> >> from my article purchase though, so there is clear evidence that this
>> happened.
>> >>
>> >> Best,
>> >>
>> >> Ross
>> >>
>> >> --
>> >> --
>> >> -/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-
>> >> Ross Mounce
>> >> Fossils, Phylogeny and Macroevolution Research Group University of
>> >> Bath, 4 South Building, Lab 1.07 http://about.me/rossmounce
>> >> -/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-
>> >>
>> >> _______________________________________________
>> >> open-access mailing list
>> >> open-access at lists.okfn.org
>> >> https://lists.okfn.org/mailman/listinfo/open-access
>> >> Unsubscribe: https://lists.okfn.org/mailman/options/open-access
>> >>
>> >>
>> >
>> >
>> > --
>> > Peter Murray-Rust
>> > Reader in Molecular Informatics
>> > Unilever Centre, Dep. Of Chemistry
>> > University of Cambridge
>> > CB2 1EW, UK
>> > +44-1223-763069
>> >
>> > _______________________________________________
>> > open-access mailing list
>> > open-access at lists.okfn.org
>> > https://lists.okfn.org/mailman/listinfo/open-access
>> > Unsubscribe: https://lists.okfn.org/mailman/options/open-access
>> >
>> >
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-- 
Peter Murray-Rust
Reader in Molecular Informatics
Unilever Centre, Dep. Of Chemistry
University of Cambridge
CB2 1EW, UK
+44-1223-763069
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