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

Tue Feb 21 12:03:38 UTC 2017

Elsevier is selling a service, "we will make your article available as an
OA article for X money". The money is transferred. Elsevier fails to
provide the service within a reasonable timeline. (Alicia from Elsevier
tries to explain why in a comment on
http://rossmounce.co.uk/2017/02/14/elsevier-selling-access-to-open-access-again/
by the way.)

Questioning the mechanics of "we will make your article available as an OA
article for X money" has value in its own right. However, it's not
necessary for us to have the exact contract used in order to discuss the
publisher not making the article OA and what we can do about it. The
mechanics will matter in court, but I doubt any of us or the article's
author are about to sue Elsevier over this particular one.

On the topic of what we could try to do about it though: several years ago,
we did a few projects with PLOS (for licence scraping), and Wellcome Trust
(batch OA compliance). The final tool held a crowd-sourced list of licence
statements and the user provided a spreadsheet of articles (DOI, PMID,
PMCID, Title). The tool then output a spreadsheet of articles together with
licence and other OA compliance information, and detailed notes on all data
sources it had tried to contact on the user's behalf.

We ended up rewriting the system (to simplify it) as
https://lantern.cottagelabs.com/ . That's also an attempt to find a
sustainable (i.e. at least paying for itself) solution to this
ever-recurring problem. You can submit up to 100 ids / mo free though, so
feel free to chuck in articles like this one and see what happens.

I've attached an example. The Mitochondrion article is the first line in
the results file. No licence is being detected from the publisher's page
(which is true, there's still no CC or any other licence), despite it being
free to read.

You can see other examples where the article licence is detected though, if
that is important to you. The idea is you can make OA compliance decisions
in bulk regardless of the exact finery of your OA policy. Ross' definition
may differ from Heather's and both may differ from Wellcome's, but they
should all be able to get the facts they need to make a decision on whether
the article has been published satisfactorily.

The technology is heavily geared towards funding policy-derived definitions
of OA (like licence) due to its origins, but it could be enhanced to check
whether the article is "free to read" without delving into the complexities
of copyright law.

Ross, (and everybody else), is a systematic, partly or fully automated
approach to OA compliance a direction that you think is valuable for the
open science community (incl. funders) to go in?
What do you think should be *done* about such cases in addition to
complaining to the publisher as Ross has done?

Emanuil
Cottage Labs

On 21 February 2017 at 01:51, Heather Morrison <Heather.Morrison at uottawa.ca>
wrote:

> 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> 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>
>> Date: 2017-02-20 5:53 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
>>
>> 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> 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>
>>> Date: 2017-02-20 5:26 PM (GMT-05:00)
>>> To: Ross Mounce <ross.mounce at gmail.com>
>>> Cc: open-science <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>
>>> 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-t
>>>> o-open-access-again/
>>>> [1] http://rossmounce.co.uk/2017/02/20/hybrid-open-access-is
>>>> -unreliable/
>>>>
>>>> --
>>>> --
>>>> -/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-
>>>> /-/-
>>>> 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
>>> Reader Emeritus in Molecular Informatics
>>> Unilever Centre, Dept. Of Chemistry
>>> University of Cambridge
>>> CB2 1EW, UK
>>> +44-1223-763069 <+44%201223%20763069>
>>>
>>> _______________________________________________
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>>> open-science at lists.okfn.org
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>>>
>>>
>>
>
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