[open-science] Elsevier are telling "mis-truths" about the extent of paywalled open access

Tue Feb 21 01:51:47 UTC 2017

Alexandre,

Your argument (see below) is "This has nothing to do with copyright law. It is contract law on the service of providing open access that researchers paid for".

This may or may not be the case. Since you have not actually seen a contract or sample contract, has anyone else? Has anyone contacted the authors to ask is they have, and can provide, a copy of their contract?

If an author does not have a copy, I suggest it is reasonable to ask Elsevier for a copy of their contract. Not the default, their specific contract.  Elsevier has different contracts, if they are having difficulty keeping track of paid OA I wonder if they are always using the right contract.

If the goal is OA it might be helpful to suggest to the author that they self-archive a copy.

best,

Heather Morrison

-------- Original message --------
From: Alexandre Hannud Abdo <abdo at member.fsf.org>
Date: 2017-02-20 6:48 PM (GMT-05:00)
To: Heather Morrison <Heather.Morrison at uottawa.ca>
Cc: Peter Murray-Rust <pm286 at cam.ac.uk>, Ross Mounce <ross.mounce at gmail.com>, open-science <open-science at lists.okfn.org>
Subject: Re: [open-science] Elsevier are telling "mis-truths" about the extent of paywalled open access

Hello,

(You responded to my msg so I assume you're still dealing around the discussion below. If you actually intended to follow on Ross' suggestion about contract clauses, I apologize and invite you to simply disregard the noise, and hopefully Ross or someone else has these contracts handy. Cheers!)

Sorry, not any easier than you would find them.

In any case, the contract is immaterial to the point discussed; it suffices to understand that nobody expects the copyright license to be the enforcing instrument in the transaction. As you notice yourself, CC-BY is not designed to hinder any kind of circulation of the work, either commercial or not.

Moreover, it would be weak to base the transaction of an OA service on copyright law, because such laws are formulated in terms of restriction and not availability, while the service provided is the permanent public availability of a work from its canonical editor.

[]'s

On Tue, Feb 21, 2017 at 12:21 AM, Heather Morrison <Heather.Morrison at uottawa.ca<mailto:Heather.Morrison at uottawa.ca>> wrote:
Can you provide a copy or sample of the contract in question?

h

-------- Original message --------
From: Alexandre Hannud Abdo <abdo at member.fsf.org<mailto:abdo at member.fsf.org>>
Date: 2017-02-20 5:53 PM (GMT-05:00)
To: Heather Morrison <Heather.Morrison at uottawa.ca<mailto:Heather.Morrison at uottawa.ca>>
Cc: Peter Murray-Rust <pm286 at cam.ac.uk<mailto:pm286 at cam.ac.uk>>, Ross Mounce <ross.mounce at gmail.com<mailto:ross.mounce at gmail.com>>, open-science <open-science at lists.okfn.org<mailto:open-science at lists.okfn.org>>
Subject: Re: [open-science] Elsevier are telling "mis-truths" about the extent of paywalled open access

This has nothing to do with copyright law. It is contract law on the service of providing open access that researchers paid for.

On Mon, Feb 20, 2017 at 11:41 PM, Heather Morrison <Heather.Morrison at uottawa.ca<mailto:Heather.Morrison at uottawa.ca>> wrote:
CC-BY permits downstream use without restrictions except for attribution, including commercial use.

While it is problematic to define precisely what constitutes "commercial use", with respect to copyrighted works the paradigmatic meaning is sales of the works per se.

This is where copyrighted started, back with the Statute of Anne. Printers who had invested in preparing works for commercial sales objected to others making copies of their work and selling them.

If one does not wish for works or rights to be sold, do not use a license that grants blanket downstream commercial rights.

With respect to Elsevier, setting aside the ethics of the matter, they are on solid legal ground if they sell works that are licensed CC-BY. So is anyone else.

best,

Heather Morrison

-------- Original message --------
From: Peter Murray-Rust <pm286 at cam.ac.uk<mailto:pm286 at cam.ac.uk>>
Date: 2017-02-20 5:26 PM (GMT-05:00)
To: Ross Mounce <ross.mounce at gmail.com<mailto:ross.mounce at gmail.com>>
Cc: open-science <open-science at lists.okfn.org<mailto:open-science at lists.okfn.org>>
Subject: Re: [open-science] Elsevier are telling "mis-truths" about the extent of paywalled open access

I want to thank Ross for the hard work he has put in on this. I know how hard is it because I did much the same 4 years ago in exposing Elsevier failure to make Open Access articles visible, and to charge rights fees on CC BY articles. This led to their seemingly uncaring "bumpy road" dismissal of the seriousness of misselling.

Nothing seems to have changed. Elsevier either cannot or doesn't care to put in place a system that works without error. Prices are so high that even a small error rate effectively deprives the world of significant amounts of money.

It seems that the most of the University/Library/Funder world does not care enough to take effective action when sold unacceptable goods and services. I have consistently argued that until we have a regulator with legal teeth the waste of public money and knowledge will continue.

On Mon, Feb 20, 2017 at 9:11 PM, Ross Mounce <ross.mounce at gmail.com<mailto:ross.mounce at gmail.com>> wrote:
Hi folks,

Remember last week I found an article that had been paid-for by the Wellcome Trust to be hybrid open access, except it was for sale behind an Elsevier paywall at the journal Mitochondrion for $35.95 + tax? [0]

Well, Elsevier have responded, first by sowing doubt on the claim, then 3 days later admitting I was correct. But stranger still, they said:

“We’ve gone through the system, this [the Mitochondrion article] is the only article affected.”

Which would be great if this were true but it isn't. There are more paywalled "open access" articles that are currently on sale at ScienceDirect right now, including one at The Lancet, which Wellcome Trust paid Elsevier £5,280 to make open access [1]. Which makes me think:

A) Elsevier’s entire system for handling hybrid open access is broken
B) Elsevier are evidently incapable of accurate self-assessment

In 2014 they eventually refunded "about $70,000" to readers who had mistakenly been charged to access articles that should have been open access. I wonder how much they will pay out this time...?

Please do share this with colleagues. I am outraged.

Links:
[0] http://rossmounce.co.uk/2017/02/14/elsevier-selling-access-to-open-access-again/
[1] http://rossmounce.co.uk/2017/02/20/hybrid-open-access-is-unreliable/

--
--
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Ross Mounce, PhD
Software Sustainability Institute Fellow 2016
Dept. of Plant Sciences, University of Cambridge
www.rossmounce.co.uk<http://rossmounce.co.uk/>
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Peter Murray-Rust
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