As I see it, the authors must retain all their copyrights, because any valid transfer of copyright would entail valuable consideration from Elsevier to the author. 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.
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.
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.
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'.
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).
"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.
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.
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.
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.
When you agree to publish with Elsevier, you sign a contract where you agree not to publish the final version of the article on-line. Many (most?) Elsevier journals DO permit you to post the so-called "author's manuscript" if you also include the appropriate disclaimer. (Whether this is permitted is also written in the contract you sign.)
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".
Yeah, that was my first thought too. It's a shock because people are used to uploading their papers in final published form but I don't think it's a crazy thing for Elsevier to do.
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.
It's a shock because the university system is paid for by us, by our tuition and taxes. People pay high tuition to go to research universities and the societal bargain USED to be that those tuitions subsidized basic research which is available to society. Elsevier isn't contributing shit compared to us, yet they can apparently lock up publication with a really small amount of money compared to the rest of the uni system.
It is my understanding that tuition never funds research, except possibly in the sense that it pays some fraction of faculty salaries and buildings in which the faculty have offices. The actual research is funded by grants.
> It's a shock because people are used to uploading their papers in final published form
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:
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.
Is it a war on access, or a defense of their contracts and profits?
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.
I thought Elsevier was already doing all it could to alienate the authors who freely donate their work to shore up the corporation’s obscene profits.
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.
It's correct though. Authors donate their work freely. Reviewers work for free. I believe even editorial boards work for free. I'm not sure about that though.
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.
I know 90%+ of the HN crowd sides, with good reason, against Elsevier, but I’d like us to not use the word “war” unless there is mutual, systematic murder between enemies.
War is a terrible thing. We shouldn’t water down our only real word for it by applying it too loosely.
Your argument is against the English language rather than HN. "War" has been used to describe things other than "mutual, systematic murder between enemies" as long as the word has existed.
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."
His argument was that you seem to be under the impression that this dilution has not already happened long ago, which is clearly false. He is not diluting the word war: you are just trying to restrict its usage for some reason.
Pretty much most of elsevier works are available on pirate sites, all they are doing is harassing their customers by this stage and further alienating them.
The general availability on the "black" market is a problem, though. It makes authors easier with a status quo that is perceived as really, really bad by those who pay the bills.
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).
I'm confused -- does Elsevier let you post your own articles on your own website (university-sponsored or otherwise)? If it does, then Elsevier isn't exactly suppressing the free dissemination of research.
As far as I know (I'm not a lawyer, but I do academic research), that third checkmark means we can share our papers within our staff group and with collaborators without them necessarily subscribing to Elsevier. We cannot however publicly make available our published manuscripts, thus we're forced to list citations + doi's even if the manuscript should be read by everyone
Elsevier's T&Cs say that for preprint (i.e. draft copies) of an article "voluntary posting on open web sites operated by author or author's institution for scholarly purposes" is permitted.
Random question, is there a Diff requirement between a draft and a final copy? What if there's only a difference of a few grammatical errors between published version and the one before that? Would the researcher be allowed to publish that "nearly-complete" copy of the paper?
Maybe as this racket dies, slowly we'll see tuition fees drop accordingly. But I'm not holding my breath.
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.
This reads as being very butt-hurt that somebody else chooses not to give away their core business. It is cool that you see profit as something obscene, but don't blame others for making a business.
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.
Nope. Elsevier's core business is coordinating reviews of papers - for which submitters pay a fee and for which the participating reviewers don't get paid - and then typesetting the articles using a special sauce and hosting it behind a paywall.
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.
Elsevier does not coordinate refereeing for typical journals; this is handled by the scientific board, who are not Elsevier employees. Elsevier is in charge of copy-editing, typesetting, and distribution, and coordinates with the scientific board.
"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."
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.
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.
It is not a contractual issue when Elsevier attacks the INSTITUTIONS that they have no contract with, for hosting the papers that the authors are explicitly allowed to host on their personal websites (which happen to be hosted by the university). It's just plain extortion. Your point 2) is explicitly allowed in the contract for the preparatory versions and the "author copy" which is identical to the published version save for a notice.
> yet they're demanding take-down notices of such pre-prints hosted on 3rd party machines.
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.)
Isn't this a website about startups and business? What is wrong with a healthy profit margin that is made by legal willing contracts between Elsevier and scientists?
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?
40% profit margins do not exist for long in properly functioning competitive markets. Deeply entrenched companies typically run at 10%. Monopolies (example: drug companies) run at 20% (arguably in the case of drug companies this is ok because they operate with much higher risk).
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.
No, they're bad because the majority of their product (that is, knowledge) isn't developed by them, or paid for by them. Instead, it's funded by universities and funding agencies. It's a parasitic relationship with very little benefit to the host.
It's a sign their profit is not just from the service they provide, which is really rather simple, but from a historically grown, entrenched system that is very hard to get rid of. They're basically a tax on society, and we'd be much better off if authors and their institutions made a clean break.
In comparison with other publishers, Elsevier is rather generous to allow authors
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.
Both the ACM and the IEEE allow authors to post the final version on their personal website, or the website of their institution.
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.
"When you agree to the copyright form" => presumably this is different for every publisher.
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.
>and yet they're demanding take-down notices of such pre-prints hosted on 3rd party machines.
In the contract you sign, it's clearly stated you can't upload your manuscript to 3rd party distribution sites, other than arxiv. Don't get me wrong here, I'm not keen on what they're doing, but they're staying within their contracts.
The thing is: Elsevier is a middle-man whose "business" (parasitism, more like) critically depends on exactly two things: scientists who want to be published in their journals, and Universities who want access to those journals. The second one of these is annoyed enough to find alternatives, there is no business.
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.
In fact, in this case they tried not to "piss off" both at the same time and in fact concentrated on the university, not the individual scientist. The university just tried to communicate its pressure to it scientists, but it's a long and hard road to get them to care (some then already do!).
Nope, it's quite a short route. You delist Elsevier publications fromt he impact index you calculate for measuring their productivity, and they'll intantly care.
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.
That's bullshit though. The authors retain copyright over their work, and have always had the right to distribute their papers on their personal websites. It's part of the deal. Now the assholes are changing the deal after the fact, and trying to use threats to get the people producing actual value to play along. If, as an author, I was okay with the rest of their evildoing before this, and accepted the deal as it stood, I no longer have any reason to trust them to honor any other agreement.
At least for some of their journals (e.g. Global Environmental Change), I understand the position is that they will allow you to post the exact final published content, but (a) not as formatted by the journal and (b) not in any kind of organised institutional repository.
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).
I'd REALLY love to see a court decide on whether adding their logo and running it through a script is a transformation substantial enough to warrant copyright as a separate work.
The contract states that there is no transfer of copyright, yet the assholes attempt to enforce copyright against the authors, while acting, effectively, as their agents. See the problem?
It states no such thing. In fact, the website clearly states exactly the opposite, in "normal" (i.e., not legalese) language:
"For subscription articles: These rights are determined by a copyright transfer, where authors retain scholarly rights to post and use their articles."
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.
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.)