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As ridiculous as it sounds, many journals, including Elsevier journals, require you to transfer copyright of your article to them. See http://cdn.elsevier.com/promis_misc/phcgj_copyright_form.pdf for one example.

That's ridiculous. It's not even funny. I can't imagine how such a contract could stand up in court if contested, unless Elsevier actually paid the owner of the copyright something.

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.

That's ridiculous. It's not even funny.

It's also null and void in my country (.cz), and probably in many other European countries.

I highly doubt it, the Czech Republic signed the Berne Convention along with the rest of Europe.

What has the Berne Convention have to do with it? I've compared the Elsevier contract draft with my local legislation, and the wording of the contract is simply unenforceable.

Treaties have the force of law, which is why they're such important documents. Your local law does not apply to materials originating outside of that jurisdiction.

You seem very knowledgeable, so let me only add what I know to be true: this is location and context dependent.

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.

Quite. But if you make a contract with me (in the US) you wouldn't be able to blow it off under cover of Australian law, is what I mean. So if Elsevier's contract terms are legal in their (Elsevier's) domicile, people who enter into contracts with them need to keep that in mind - which is why most contracts have a 'choice of law' provision saying which laws will govern the enforcability of the contract in the event of a subsequent dispute.

There is no legal requirement that contracting parties give equal value in exchange. What you're referring to is commonly referred to as the "consideration" required for a valid contract, but it is easily satisfied. It does not require equal value, it requires merely that "something" be given by both sides. E.g., if the author of an article desires to have it published, a publisher's mere promise to publish could serve as consideration for the author's transfer of copyright. "We'll promise to publish this if you transfer copyright to us." That would be a perfectly valid agreement.

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'.

Equitable consideration is a thing.

"Elsevier gives NOTHING to the author except the promise of publication and distribution"

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.

Well put.

A promise to publish is worth nothing. An enforceable obligation to publish might be worth something. But if I were the judge, I think I would put the onus on Elsevier to show how Elsevier's nonmonetary compensation provides value to the author, especially if they were required to transfer their copyrights. From here, it looks like an enormous scam perpetrated on researchers to force them to run full speed on a virtual hamster wheel in order to keep their jobs or get promoted.

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.

A promise to publish is worth nothing. An enforceable obligation to publish might be worth something.

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.

Yes, and I expect you (anigbrowl) understand this, but it wouldn't even necessarily require that copyright be transferred to make a promise to publish enforceable. One view of contracts is that a contract is merely a set of legally enforceable promises. E.g., On December 1, 2013, Author and Publisher reach an agreement: Author promises that on January 1, 2014 he/she will transfer copyright to Publisher in exchange for Publisher's promise to publish sometime in 2014. Each promise serves as consideration for the other and Author becomes legally bound to transfer the copyright on January 1 as soon as the agreement is made on December 1.

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. . . .

Quite. I think part of the reason for the misconceptions is that many people expect contracts to be equitable, and (IMHO) equity is the poor cousin in US law because of excess proceduralism.

Academic publishers generally do give explicit "consideration" to make the contract valid. I don't remember what Elsevier does exactly, but the "consideration" is typically discounts on copies of the journal or conference proceedings where the article will appear or other types of discounts on the publisher's products. Yippee. The contracts typically don't actually promise to publish anything (they don't want legal liability that way).

The typical journal paper costs over $1000 to publish. If the publisher truly provided no value then the paper would still be sat in a PDF file on a laptop - that's clearly not the case. If we're talking about open access where that author pays then peer review, editing, and the publishers reach is still of value.

Yeah, it's excessive, do they really need the TV rights?

> ... many journals, ... require you to transfer copyright of your article to them.

Nearly all of them, in my experience.

No, the contract is "considered", as the authors get peer reviewed and published by a big brand name and the publisher gets to charge the readers - everybody gains something valuable.

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.

> The authors pay Elsevier to coordinate peer review and publish using their brand names.

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.