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

Tue Feb 21 16:19:48 UTC 2017

Ok to go back to Emanuil's first two sentences:

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.

To sum: there may well be a breach of contract. If order to prove this in court, someone needs to pursue this in court, and to prove a breach of contract, it will be necessary to provide a contract.

If authors have used funds for OA, it may be simpler for all involved for funders to insist that these articles be deposited in an open access repository, even the ones that have already been published.

The reason why CC licensing is relevant is because there is an assumption that if funder policy demands CC-BY, this is sufficient to ensure open access. This case is a good one to reflect on the wisdom of this approach.

best,

Heather Morrison

On 2017-02-21, at 11:06 AM, Tom Morris <tfmorris at gmail.com<mailto:tfmorris at gmail.com>>
 wrote:

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<mailto: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<mailto:emanuil at cottagelabs.com>>
Date: 2017-02-21 7:10 AM (GMT-05:00)
To: 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

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<mailto: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<mailto:abdo at member.fsf.org>>
Date: 2017-02-20 6:48 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

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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Dept. of Plant Sciences, University of Cambridge
www.rossmounce.co.uk<http://rossmounce.co.uk/>
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