Elsevier steps up its War On Access
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Now, there may be other contract terms that are not obvious. One such term may be that the author not publish the work himself. The worst that could happen here is breach of contract. Since the only up-front consideration was from the author, this just means that Elsevier doesn't need to do what the author paid them to do, while still keeping the consideration of cash plus copyright license. It's sole remedy is to not coordinate peer review and not publish. Since it ALSO charges fees on that end, it has no reason to do that.
There must be a quid pro quo in a lawful contract. You can't bind someone to its terms unless you give them some valuable thing in return. Elsevier gives NOTHING to the author except the promise of publication and distribution. You can never prevent the author from making his own copies, ever. Your sole remedy is to write a penalty for doing so into the contract, but then you would have to PAY the author something to enforce it.
Elsevier does not give the authors anything, therefore they cannot demand performance under the contract. The only thing they can do is use one of those restrictive terms to weasel out of their own obligations under the contract while still keeping what the author gave them. They are absolutely in the wrong by demanding people take down their own work.
(I am not a lawyer.)
If a contract does not involve an exchange of value between the parties, but instead appears to be a one-sided transfer, a judge might strike it down as unconscionable. If the contract were voided in this way, instead of breached, Elsevier would have to give back everything it got from the author. If you paid for it, even one penny, that sale is much easier to defend in court.
But they don't pay. They charge at both ends.
It's also null and void in my country (.cz), and probably in many other European countries.
For example: If I make a contract with another Australian (company, individual, whatever), no treaty has an effect on that contract unless legislation has been passed to enact that treaty. A judge may refer to the treaty if there is some ambiguity that requires his/her discretion, but the treaty itself is not legally binding.
Also, you say "The authors pay Elsevier to coordinate peer review and publish using their brand names. This necessarily includes granting a license to Elsevier to copy and distribute the author's work." Well, transfer of copyright by author could be seen as simply part of the payment to Elsevier to coordinate peer review and publish the article. Consideration need not be, and very frequently is not, in the form of money. In fact, even in contracts where one party provides consideration in the form of money, the other party usually provides its consideration by promising to perform a service, or to transfer goods other than money.
There is a doctrine wherein otherwise valid contracts can be voided because of "unconscionability". Although the term is thrown about a lot, contracts -- even very one-sided contracts -- are almost never voided for unconscionability. The whole idea of contracts is that two private parties agree to terms to apply between themselves. Courts are thus very hesitant to intrude, unless there is a specific legal reason to do so, not just a general charge of 'unconscionability'.
The "status" of publication has a demonstrable market value, so I'm not sure why we are debating this.
I know it sounds stupid, and it's a case of {pschopaths>incompetents>losers}, but in reality the author's "careers" and "reputations" are on the line. And the academics are in the Losers bucket here. The grant-writers and tenure comittees take the title of "incompetents". And yes, the Elseveiers very much psychopaths.
And if you also consider all the fake papers submitted as integrity checks on the system that got accepted, it looks as though it's high time for researchers, professional associations, and universities alike to forcibly cut out the middleman and abandon his tainted brands.
When copyright is transferred, the promise effectively becomes an enforceable obligation. Artists are (occasionally) able to wriggle out of contracts on the basis of the failure to publish within a particular timeframe, because popularity is arguably a function of the timely availability of new material.
All of this goes far beyond main theme of the thread, but I initially raised the point because there seemed to be some confusion on whether Elsevier could rightfully claim ownership of copyrights. . . .
Nearly all of them, in my experience.
What you refer to as "contract terms" are mostly part of copyright law and nothing to do with this specific contract, for example the copyright holder has "the exclusive right to produce copies or reproductions of the work and to sell those copies" under copyright law which means that it is quite natural to transfer that exclusive right to a publisher thus preventing the author from making their own public copies. There is usually a contract term permitting authors to engage in ad-hoc sharing with colleagues for this reason. Likewise there is usually a contract term allowing authors to post their work to public-facing institutional/departmental web servers. (The original article linked to doesn't specify exactly what material was posted, I would speculate that somebody posted a bibliography or some other collection of papers in which they are not an author, and that is why the publisher is unhappy).
The publisher unquestionably delivers value to the author, their academic career rests on the value embodied in their peer review process and a typical article costs over $1000 to publish. There's certainly a conversation to be had about Elsevier and their policies but it does not include the phrase "Elsevier doesn't give the author anything", which defies logic.
Traditional academic journals do not require payment from the author. While author-pays journals are becoming more common, AFAIK all journals published by Elsevier still work the old way. Elsevier makes money off its journals through subscription fees.
For example: http://zvrba.net/writings/fusion.pdf
In that light, I don't think Elsevier is the worst among bad guys. For example, you're also permitted to upload the unreviewed version to arxiv before submitting it to journal. Some other journals will outright reject the article because of its "prior publication".
We should take the opportunity to tell authors to upload author copies into their institutional repositories. That's do far more for open access than complaining about how evil Elsevier is.
How common is this? Aren't people used to reading what they're agreeing to before they sign a contract? Because:
> but I don't think it's a crazy thing for Elsevier to do
I don't think that either. Elsevier _clearly_ defines the terms ("accepted author's manuscript", "final published version", etc.) in their contract and clearly states what you're allowed to do with each one. For example, click on the "Author posting" tab on this link:
http://www.elsevier.com/journal-authors/author-rights-and-re...
I'm not a fan of the big publishers, I'd be very happy if all journals became open access overnight, but the original article is on a witch-hunt on Elsevier and they didn't even fully check the facts first.
"Subject repositories that aim to aggregate and openly distribute AAMs authored by researchers in specific subject areas."
(There's a difference between AAM and pre-print.)
I'm pretty sure that's a decision made by individual journals' editorial boards, not by the publishers.
I'm a big believer that all publicly funded research should be publicly available. But... If you sign away your research, don't be surprised when people want to keep it under wraps.
This is not a statement that I would expect to see in a well-balanced post containing sensible discussion about the pressing requirement for more open access.
The full details on author rights are publicly available on Elsevier's site at http://www.elsevier.com/journal-authors/author-rights-and-re... - and as far as I'm aware, their current round of legal threats doesn't contradict that.
Open access is REALLY, REALLY important to the future of science, but we won't get anywhere by misrepresenting the current state of affairs.
All Elsevier has to do is hassle people for reviews and run a website. Hardly difficult. They only survive because of the insane network effects of journal publishing.
War is a terrible thing. We shouldn’t water down our only real word for it by applying it too loosely.
Complaining about using the word "war" when not actually talking about murder is like complaining about using the phrase "I see" to say "I understand."
Look at the definition, which reflects usage today: http://www.merriam-webster.com/dictionary/war
While information providers in academia (mostly still called "libraries") struggle with their budgets, being forced to discontinue some journals and are at a point where they would love to communicate their pressure to the scientists (who decide upon where they publish, with good reasons) - they cannot quite get the point through. Scientists established their own information providing ways, being it Twitter (asking their collegues for their own means) or Libgen and folks. And you could - as a scientist - always drop the author a personal inquiry in the worst case. Nevertheless, the libraries are expected to buy it by enough parties that are left out in the black market game.
It's a pretty skewed market.
Disclosure: I work at a library that has to buy journals and struggles with budget for this (as probably all libraries do).
The answer probably lies in the meaning of the third checkmarked item on http://www.elsevier.com/journal-authors/author-rights-and-re..., which says the following is allowed:
Sharing individual articles with colleagues for their research use (also known as 'scholarly sharing')
I always thought a significant share of my tuition payments must have been allocated to cover overpriced library subscriptions. I would go so far as to say these publishers indirectly make university more expensive; because the absurdly high cost of the subscriptions must surely passed on to students.
Same goes for sending takedown notices. If you are technically in breach, you are in breach.
If you don't want to do business with Elsevier, that is fine. If you don't want others to do so, that is fine too. This is just being sad.
A pre-print of an article typeset using LaTeX on the academic's own machine is not under their copyright, and yet they're demanding take-down notices of such pre-prints hosted on 3rd party machines.
They are overreaching, and now they're alienating universities (who pay handsomely for site-wide subscriptions).
I don't give them long, even if they do publish Physica A.
When you agree to the copyright form, you also agree that you won't systematically distribute preprints or submit them to a systematic distribution service.
In comparison with other publishers, Elsevier is rather generous to allow authors to post a preprint on their personal web-page (whether or not it is served by their university.)
My only pre-print (hosted on arXiv) was submitted there long before it was accepted for publication in a non-Elsevier journal, who have made no attempt to take it down.
There are also open access journals which explicitly allow you to host your own pre-prints.
"Elsevier made $1.1 billion in profit in 2010 for a profit margin of 36%."
https://libraries.mit.edu/scholarly/mit-open-access/open-acc...
Just because they make money and are involved with copyright they are automatically bad? If they were barely making any money and closer to broke startup founders, then they would be OK?
If you find a 40% margin that can't be ascribed to transient behavior, you have found a market that has entered one of the (many) modes of market failure, in which the usual arguments for markets being a force for good (or least evil) go out the window. We use markets precisely because they tend to avoid situations like this; it baffles me how frequently the "market did it so it must be good" argument rears its head every time there's an exception. It's circular reasoning, at least for those of us who don't take the moral infallibility of the free-market as an article of faith.
Specifically, they are not "automatically bad" because they make money using copyright. They are bad because they've found a loophole that lets them monopolize a critical distribution channel for taxpayer-funded research, and they're milking the shit out of it at enormous cost to taxpayers and students. Broke startup founders do not get to appropriate tens of billions of dollars of taxpayer-funded work and hold it hostage from those who have paid for it, and if they did it would not be OK.
There would be no monopoly if scientists didn't agree to their terms and refused to submit papers to them. They'd go out of business very quickly.
They are absolutely not generous. In my field, the ACL is one of the largest organisations, which publishes (among other things) two journals. Nearly (or all?) publications are publicly available at:
Let's not forget that a substantial share of research worldwide is paid for by tax payers. It's awful to see that most of that knowledge does not become generally available to the larger public, but ends up being used to increase the profits of an oligopoly.
Of course, the ACM and IEEE are professional organizations, not for-profit publishers. So they can actually move away from the pay-per-access model and still continue to exist. I don't see how for-profit publishers can.
I have no position in this battle, but misinformation is misinformation: who has copyright on pre-prints is entirely immaterial. Authors, in order to get published in an Elsevier journal, 1) promise they didn't publish it before (with exceptions) and 2) promise not to redistribute the final paper or its preparatory versions after it has been published. They also agree to not allow anyone else to redistribute any of that in case, through whatever channel, it gets out. So this is purely a matter of Elsevier holding the author to their end of the bargain. Said author is entirely free to not enter into it in the first place, of course.
In some fields it's not that free. The choice between publishing in a high-impact Elsevier journal or a low-impact journal with acceptable terms is not really a choice if you want to have a career in science.
Many choices, in fact. Including & not limited to: raising awareness of Elsevier's reprehensible practices, writing blogs, commenting on online forums. Lobbying various institutions. Not signing an explicit contract with Elsevier? Definitely a choice.
"Society made me do it" is always a pathetic excuse.
Elsevier allows you to post the preprint, but not the final published version (which includes Elsevier's typesetting, logo, etc.)
"For subscription articles: These rights are determined by a copyright transfer, where authors retain scholarly rights to post and use their articles."
http://www.elsevier.com/journal-authors/author-rights-and-re...
In case of (a), I actually prefer to post my own PDFs, because one of the tasks publishers-as-middlemen generally perform is screwing up captions, misapplying 'style guides' and so on.
Regarding (b), they are clearly trying to make it more difficult to find these posted articles, and to reduce the number posted by ensuring that individual authors have to take the initiative (rather than it being a matter of institutional policies).
(Edit: reading your comment again, I see that I'm wholly agreeing with you).
Absolutely not. Copyright is spit into several separable rights and the authors have signed some of these away. That they still own the majority of their rights under copyright is irrelevant.
> and have always had the right to distribute their papers on their personal websites
No they haven't. This was allowed (for preprints) under Elsevier's T&Cs only a few years ago. Authors have signed away their right to publish their work, so they need explicit permission.
You may not like the agreement, but it's perfectly valid under the law.
Which makes it very, very unwise to piss off both at the same time.
Science publishers served a purpose in the past, but the cost of what they're doing has gone down dramatically and at the same time they're jacking up prices to absurd levels to extract the maximum profit from the pseudo-monopoly resulting from the non-fungibility of science results and magnified by aggregation.
And the worst thing is that they extract these profits at the expense of everyone else because it actually reduces the accessibility of scientific research and the profits are paid for from science budgets.
It's the perfect example of an entire industry whose activity is a net negative for society at large.
Universities are pissed off Elsevier when buying their material, but completely in love when hiring researchers, and also wondering why researchers don't seem to get what they feel about the matter.