Experts give their opinion on Elsevier’s assault

“Last December Elsevier sent out thousands of e-mails to repositories of articles relating to scientific publications in open access which had been published in Elsevier journals requesting that those articles be removed, by invoking the protection given to copyright holders granted by the DMCA. This action caused a state of alarm at the heart of the academic community because it could be the first of similar actions to be carried out by the commercial publishing establishment. Voices have been raised in defense of copyright, but sooner or later researchers will have to decide if the traditional publishing model is the one which best suits their interests”. (SciELO in Perspective 2014)

A previous post published a few days ago on this blog, began with the paragraph cited above. The state of alarm went public at the start of January as a result of an article published in the Economist, where it was stated that Elsevier had sent the emails mentioned in the above paragraph to Academia.edu as well as to several prestigious American and Canadian universities. This action gave rise to an active debate on the Web concerning the rights an author has over the different versions or revisions of a scientific article which has been published.

For example, Kevin Smith of Duke University, stated in his blog¹ that authors only transfer the rights to the final version of an article to the publisher. This is not correct as many advocates of Open Access assume. According to Kevin Smith (2014), “Each version is a revision of the original, and the copyright is the same for all these derivatives.  When copyright is transferred to a publisher, the rights in the entire set of versions, as derivatives of one another, are included in the transfer”.   (We need to make it clear that Kevin Smith portrays himself as an advocate of Open Access). It would appear that many people share the same opinion as him, because in the first two weeks after its appearance, the article which was published in The Economist generated well over 1,200 Social Shares, and almost 60 reader recommendations.

In his post, Kevin Smith adds that it is a well- known fact that under the terms of the Elsevier license, authors can post the final version of their article on a site after the final revision process has taken place, but not the version published in the journal itself which will contain editorial improvements in formatting which have been incorporated by the editor. And it is this concept which is not always grasped by academics, since they do not appreciate the difference that exists between both versions. The misconception is in thinking that the transfer of rights on the part of the author only covers the final version of the article. This is not the case because copyright includes any derived work which may be “substantially similar”. As an example, he says that if a drawing, a graphic or a table were to be taken from a published work and were to be slightly modified, this would not change the original copyright. When copyright is transferred to the publisher, the complete set of all the versions is also transferred, as well as the derived works. Authors can only use their post-prints in specific situations, when they have the right to do this by having had it included in the publication contract. Many publishers do allow the dissemination of the final version of articles, but on a strictly limited basis, such as on an author’s personal Website, and on personal repositories, and then only after a period of embargo.

The important implication of all this, as Kevin Smith says, is that academics could simply refuse to transfer their rights or that they could negotiate very precise contract terms, transferring some rights and withholding others.

The most important lesson provided by this article published in The Economist is that publication contracts are extremely important. Before transferring any rights to a publisher, the author is in a strong position when it comes to negotiating an agreement, but after he has signed, he has very little power. Finally, Smith’s post concludes that this Elsevier tactic could be counterproductive, since in its desperation to put a brake on the Open Access Movement it is making bad decisions.

But everyone is not of the same opinion as Kevin Smith about whether the rights apply to the different versions of an article. In the same week Richard Poynder, in his blog Open &Shut, posted an interview with Charles Oppenheim on this topic which was later commented upon by Steven Harnad. Richard Poynder is a UK based specialist and an international authority on copyright and Open Access who has worked from the beginning with Steven Harnad, Richard Stallman, Lawrence Lessig and other leading figures in the Open Access movement. His blog Open &Shut is essential reading for those interested in the subject.

Poynder states that if Kevin Smith’s premise were true, then it would have a major impact on Open Access, including the Green Road. He then goes on to introduce the interview with Charles Oppenheim, an expert in copyright in the UK who has frequently worked with Steven Harnad in favor of Open Access. According to Oppenheim, advocates of Open Access are correct in believing that the transfer of rights only relates to the final version, meaning that authors retain the rights relating to the previous versions. That interpretation is valid both in the UK and European Community legislation, so authors are entitled to publish previous versions of an article on the Web.

To better understand the different variants available to an author in publishing in repositories, he recommends looking at what is called the “Harnad-Oppenheim solution”, presented in a set of slides 10 years ago (in particular, see slide 7). While Oppenheim recognizes that one could ask why someone would want to see previous versions of a work when a definitive version exists which has been reviewed and passed by an editor, the response is that no editor has suggested that the solution would be illegal.

Oppenheim recommends the following strategy when publishing, in order of preference:

– Offer the article to only an open access journal.

– Offer the article to a subscription based journal that accepts that the author is giving only a license to publish the article while retaining the rights to deposit it in a repository, possibly after a period of embargo.

– Offer the article to a subscription based journal that nominally requires assignment, but which is open to negotiate other conditions that you insist upon.

– Agree to assign the copyright to the publisher, and then use the Harnad-Oppenheim solution.

– Agree to assign the copyright to the publisher and do nothing more.

Oppenheim’s interview is discussed by Steven Harnad in Poynder’s blog² and the comments  bring to the fore many interesting points. We have selected the following:

• Sixty percent of journals (Elsevier included) formally state in their copyright agreements  that authors retain the right to offer the final, peer reviewed, revised and accepted  version of their article in Open Access (under the Green Road) immediately, without embargo, by self-archiving them in their institutional repositories.
• Takedown requests sent by Elsevier do not apply to the author’s final version but to the publisher’s version of record deposited with third party sites, such as academia.edu. Elsevier is not only concerned about the version but also about where the article is deposited.
• Authors can immediately deposit and make articles available in their institutional repositories in the case of the 60% of journals that formally allow authors to retain self-archival rights under the Green Road without embargo.
• In the case of the remaining  40% of journals that formally allow authors to retain self-archival rights but with embargo, authors who accept the publisher’s embargo period can immediately deposit the final, peer reviewed, revised and accepted article with limits on access to the full text during the period of embargo to the author only, and free access to the abstract for all users. In these cases, Hanrad suggests adding a button for requesting an e-print which the author can reply to on a case by case basis via email.

As in our previous note³, we feel that a growing number of researchers will surely begin to reflect on whether the traditional legacy system based on print is more of a hinderance than a help to research, and ultimately if companies like Elsevier are in any way necessary, and finally if the solution promoted by SciELO over the past 15 years, like many similar initiatives around the world, would be more appropriate.

Notes

¹ Duke University Libraries – http://blogs.library.duke.edu/scholcomm/2014/01/28/setting-the-record-straight-about-elsevier/

² Oppen Access Archivangelism – http://openaccess.eprints.org/

³ Publishing giants fight back – Elsevier goes author hunting – http://blog.scielo.org/en/2014/02/06/publishing-giants-fight-back-elsevier-goes-author-hunting/

References

Academic publishing: No peeking…A publishing giant goes after the authors of its journals’ papers. The Economist. [viewed 11 January 2014]. Available from: <http://www.economist.com/news/science-and-technology/21593408-publishing-giant-goes-after-authors-its-journals-papers-no-peeking>.

Guest Post: Charles Oppenheim on who owns the rights to scholarly articles. Open & Shut? [viewed 04 February 2014]. Available from: <http://poynder.blogspot.co.uk/2014/02/guest-post-charles-oppenheim-on-who.html>.

HARNAD, S. Digital Formality & Digital Reality. Comment on: Guest Post: Charles Oppenheim on who owns the rights to scholarly articles. [viewed 05 February 2014]. Available from: <http://openaccess.eprints.org/>.

HARNAD, S., and OPPENHEIM, C. How to get around restrictive copyright legally. Resolving the Anomaly (slide presentation). (200?). Available from: <http://users.ecs.soton.ac.uk/harnad/Tp/2-Resolving-the-Anomaly/sld007.htm

http://blogs.library.duke.edu/scholcomm/2014/01/28/setting-the-record-straight-about-elsevier/>.

Publishing giants fight back – Elsevier goes author hunting. SciELO in Perspective. [viewed 12 March 2014]. Available from: <http://blog.scielo.org/en/2014/02/06/publishing-giants-fight-back-elsevier-goes-author-hunting/>.

SMITH, K. Duke University.Setting the record straight about Elsevier.[viewed 28 January 2014. In Authors’ Rights, Copyright Issues and Legislation, Scholarly Publishing. Available from: http://blogs.library.duke.edu/scholcomm/2014/01/28/setting-the-record-straight-about-elsevier/>.

External link

Open & Shut – http://richardpoynder.co.uk/index.html

About Ernesto Spinak

Collaborator on the SciELO program, a Systems Engineer with a Bachelor’s degree in Library Science, and a Diploma of Advanced Studies from the Universitat Oberta de Catalunya (Barcelona, Spain) and a Master’s in “Sociedad de la Información” (Information Society) from the same university. Currently has a consulting company that provides services in information projects  to 14 government institutions and universities in Uruguay.

Translated from the original in Spanish by Nicholas Cop Consulting.