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

Tue Feb 21 16:06:48 UTC 2017

I don't know why these extraneous issues like rights assignment, CC-BY, etc
keep getting dragged in. They may be interesting topics to discuss in their
own right, but they're not relevant.

I totally agree with Alexandre, Emanuil, and Ross that this is a
straightforward contract law / breach of contract issue. Go back and
re-read the first two paragraphs of Emanuil's message. It contains a
concise summary of what the issue is.

Tom

On Tue, Feb 21, 2017 at 8:00 AM, Heather Morrison <
Heather.Morrison at uottawa.ca> wrote:

> Gathering information from published articles (automated or not) does not
> give the whole picture with respect to the copyright of the articles.
>
> Last year I did a case study of Elsevier and found that when authors pay
> for OA with CC licenses, copyright is in the name of the author but it is
> very clear that the author has transferred virtually all rights to
> Elsevier. Elsevier makes this very clear, referring to the author's rights
> to their own works as the same as that of any other third party. I call
> this author nominal copyright. Details and documentation are published in
> The Charleston Advisor:
> http://www.ingentaconnect.com/content/charleston/chadv/2017/
> 00000018/00000003/art00014
>
> This is important, because Elsevier is the licensor of the CC licenses. CC
> provides a means for copyright holders to waive some of their rights under
> copyright; it places no obligations on licensors. That is to say, even if
> an article is on the Elsevier website as free-to-read, with a CC license
> and author copyright statement, in effect Elsevier is the copyright owner
> and there is no guarantee that Elsevier will never change the license in
> future.
>
> If an article is published CC-BY with any publisher other than Elsevier,
> Elsevier would be completely within its rights to put the article on their
> website behind a paywall and charge for rights. This is downstream
> commercial use. Of course this right is not just for Elsevier but for
> everyone.
>
> I do not know if there has been a systematic study of practices by other
> publishers. My research involves looking at the websites of a large number
> of journals. I often note copyright anomalies. This appears to me to
> reflect common confusion about copyright as well as the fact that CC
> licenses were designed to be used by copyright holders and do not address
> the contractual relationship between author and publisher. This needs
> research. If authors retain copyright, what rights and responsibilities do
> or should publishers have? If the author retains copyright and uses a CC
> license, does the publisher actually have an obligation to publish?
>
> best,
>
> Heather Morrison
>
>
> -------- Original message --------
> From: Emanuil Tolev <emanuil at cottagelabs.com>
> Date: 2017-02-21 7:10 AM (GMT-05:00)
> To: open-science at lists.okfn.org
> Subject: Re: [open-science] Elsevier are telling "mis-truths" about the
> extent of paywalled open access
>
> 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/>
>>>>> -/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/
>>>>> -/-/-/-/-/-/-/-
>>>>>
>>>>> _______________________________________________
>>>>> open-science mailing list
>>>>> open-science at lists.okfn.org
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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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>>>>
>>>
>>
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