Elsevier charge for re-use of author-paid Open Access article in teaching

The legacy publishers are not shy of promoting "their" latest articles under the #openaccess twitter tag. Here's todays from Elsevier. You might think that when an author had paid APCs to publish an article as "Open Access" you'd be allowed to use it for teaching 50 students. But no. I asked for permission – as an academic – to re-use 3 pictures from this article for teaching. And I am to be charged 82 dollars for

Let's review …

  • Bowen and colleagues do some research.
  • They draw the diagrams to support the research
  • They PAY Elsevier so the whole world can read this

And Elsevier still refuse to allow this to be used for teaching without additional payment.

So what happens?

Either the lecturers break the law and show the pictures to the students. Or they refuse to show the pictures, which is bad education and bad science and immoral.

And no-one except me and a few others get angry. Because after all it's only taxpayers' money we are spending anyway.

 

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25 Responses to Elsevier charge for re-use of author-paid Open Access article in teaching

  1. Matt Ashby says:

    I think I've missed something because I don't quite understand what the problem is. The article at http://www.cell.com/cell-reports/abstract/S2211-1247(13)00331-8 is licensed CC-BY-NC-ND so (as long as your use isn't commercial), is there any reason why you can't reproduce it as often as you like? Also, the page states that the copyright is held by the authors, not by Elsevier, so if you did want to do something that went beyond the CC licence, wouldn't you request permission from the authors rather than from Elsevier?

    • pm286 says:

      ND stops me reusing excerpts (e.g. images)

      What is commercial?

      • Graham says:

        It prevents you using excerpts without permission.

        But as the copyright is held by the authors, not Elsevier, the authors can legitimately provide you with authorisation to use the images. at not cost, regardless of what the publisher states.

  2. Simon Bains says:

    Is the 'ND' part the issue? It prohibits making changes or creating derivative works. As I understand it, copies under this licence have to be exactly the same as the original. If you take an image out of it and put it in a slide, you've created a derivative work. If it was CC BY this wouldn't apply, but then Elsevier would, I think, charge a higher APC instead. This is the sort of thing the RCUK policy prevents by requiring CC BY.

    • pm286 says:

      This is both an ND and NC issue (see next post).

    • Jan Velterop says:

      Interesting comment: "If it was CC BY this wouldn’t apply, but then Elsevier would, I think, charge a higher APC instead." Simon seems to confirm my impression that CC-BY-(NC/ND/SA) is a hybrid of open access (free dissemination) and dissemination-controlling measures, vestiges of the subscription model (and thus generating revenue by charges based on rights reserved, such as for dissemination that is deemed commercial, dissemination in derivatives, and partial sharing).

      I wonder if APC-paying authors realise that. Perhaps it's made abundantly clear to them.

      In my view, however, APC-supported open access should always be CC-BY licensed (though CC-zero would be acceptable as well, to earn the label Open Access).

      • pm286 says:

        Thanks Jan,
        I think you have analysed it correctly. Some publishers like NPG offer CC-BY Open Access at X GBP and also CC-NC "Open Access" at (say) 0.75 X GBP. Of course the author will choose the lesser price as the publisher tells them it's "Open Access". And Elsevier use CC-BY-NC-ND as "Open Access".

        But publishers are "our partners in a win-win situation" (Elsevier) aren't they?

  3. David Roberts says:

    If Peter is teaching students who are paying (directly or indirectly) for that, then someone is making money from the use of the images. The problem is, no one wants to be the test case in a law suit, even if morally it seems one 'should' be allowed to use them for teaching.

    • Phil Lord says:

      Actually, this isn't true. Legally, if Peter is teaching as part of his job for the University, then he is working for a charity. As you say, he probably doesn't want to be part of a test case, this is true, but I think, even with the lack of clarity in the CC-NC, he would have a very strong claim to have followed due diligence if he were to use the work.

      The ND part is a different issue. The ND applies to everyone, NC or not. So, I think he can give out the entire paper, but cannot use just the image. Unless you consider the image to be a work in it's own right, in which case, it's not a derivative, because it's an entire work.

      • Pat Parslow says:

        Charities can (and often do) have commercial activities. The teaching aspect of University work may well be ruled to be commercial in the UK, given the new fees regime, if it ever gets tested in court.

      • pm286 says:

        Thanks Phil,
        This helps to show how complex this is. Remember that you are ONLY talking about UK. Elsevier is forbidding Commercial in nearly all jurisdictions in the world. So this analysis would have to have 100 different variants.

        • Phil Lord says:

          Agreed, Peter. Fundamental problem with the law. What is true here is not necessarily true there for most definitions of here and there.

          As is always the case, though, copyright law is not about knowing that what you do is legal. It's about reducing the possibility that you get sued, and reducing the potential damages if you do get sued. This would hold even if you copied some work that had a CC-BY license; because who ever attached the license might not be legally entitled to.

  4. Pat Parslow says:

    A couple of things: If the diagrams are a small part of the paper, you could re-use them for educational purposes anyway. If they are a larger part, you could reproduce the whole paper under the CC licence for the students. I'm not sure whether extracting parts is permissible under the ND clause of the CC licence?
    I'm not sure I would have asked for permission - I think re-use for educational purposes it quite well covered. As David says, though, it may come down to whether your use is commercial (a poorly defined term, for copyright and licensing issues, imho)

    • pm286 says:

      >> A couple of things: If the diagrams are a small part of the paper, you could re-use them for educational purposes anyway.

      NO. This might be true in some jurisdictions. Educational gives no rights.

      >>If they are a larger part, you could reproduce the whole paper under the CC licence for the students. I’m not sure whether extracting parts is permissible under the ND clause of the CC licence?

      It's *NC* that is the problem.

      >>I’m not sure I would have asked for permission – I think re-use for educational purposes it quite well covered.
      Where? In LEGAL terms ( not in common morality and ethics)
      >> As David says, though, it may come down to whether your use is commercial (a poorly defined term, for copyright and licensing issues, imho)
      See next post

      • Pat Parslow says:

        Well, Section 32 of the Copyright act is entirely about educational use, although I am told rulings on section 29 render it next to useless. Given the recent common sense with copyright appeal ruling in the Supreme Court (Meltwater case) there is a reasonable chance that, properly argued, they would rule that in order for section 32 to have meaning, the previous rulings on 29 would have to be overturned to some degree. Which is conjecture, of course; but it is certainly not true to say "Educational gives no rights" until section 32 is repealed.

        NC *may* be problem. That is far from certain and depends on definitions of commercial. ND is definitely a problem, but not one that cannot legitimately be circumvented by including all of the document in the presentation (making technical adjustments as necessary, such as putting it on to different slides), then skipping the content you don't particularly want to focus on.

  5. Ed Chamberlain says:

    The CC-BY-NC_ND license has next to no actual definition of commercial activity, thus leaving many academic activities such as teaching in a competitive £9k+ a year institution in an un-certian grey legal area. Peter is right to challenge this.

    Furthermore, if you have paid for that license with an APC you are still not Gold compliant, despite what Elsevier might say.

    • pm286 says:

      Thanks Ed,
      Nothing can be taken for granted in the legal aspects.

      The word "Gold" is operationally meaningless. It's a political not a technical term. It means something that appears on a publishers' site as opposed to self-archiving.

      It may or may not have APCs
      It may or may not allow reuse
      It may or may not be BOAI-compliant.

      I hope that the REF will stand firm on CC-BY.

  6. Grant Young says:

    I'm not excusing Elsevier and aware there are bigger principles involved, but it might be that the revised copyright exception for educational use would cover you in this and similar instances. The IPO consultation on this amendment closes tomorrow - so there is still a little time to make a submission on this. Details and propsed amendment are here: ttp://www.ipo.gov.uk/types/hargreaves/hargreaves-copyright/hargreaves-copyright-techreview.htm (see under 21 June).

    • pm286 says:

      Many thanks,
      have you made a submission?
      This is of course only UK. Elsevier is forbidding commercial use everywhere in the world and forbidding derivative works everywhere. The same exercise has to be repeated for each country

  7. Alicia Wise says:

    Dear Peter,

    In fact you CAN use those images for teaching your 50 students. Our view is that the use of excerpts or figures in a university educational setting is entirely NC, so this is permitted without charge. In fact, Elsevier joined other publishers in 2008 in an STM association statement over academic use of illustrations and short quotes, and is committed to the non-fee use of such content—for details see http://www.stm-assoc.org/2008_02_01_Guidelines_for_Quotation_From_Journal_Articles.pdf.

    Although we are not sure precisely what occurred in this situation, if you used the CCC RightsLink site to seek permission to use the images you may have been asked to pay a permission fee. We are working with the CCC to clarify at an article level when this should happen and when it should not—obviously in this situation it should not have happened. As a publisher actively engaged in facilitating a managed transition to sustainable open access we work hard on just these sorts of transitional matters. We apologize for any misinformation (if you did indeed go via CCC RightsLink – that is an educated guess on our part), but hope this posting clarifies our views and gives you the confidence you need to use the images for teaching purposes.

    With kind wishes,

    Alicia Wise
    Director of Universal Access
    Elsevier
    @wisealic

    • pm286 says:

      Thank you.
      I followed the simple process of clicking on the permission request which took me to Rightslink. The picture shows this clearly and if you had gone there you would have seen the same formatting. I WAS (not might be) asked to pay a fee and I created a screen shot so your educated guess was correct.

  8. Terry Bucknell says:

    The CCC RightsLink links on publishers' sites merrily let you pay for rights that your institution's site licences may already grant you for free. And for hybrid journals like this, it is possible that your site licence for the journal might grant you rights to articles that the Open Access CC licence for the article does not (explicitly), e.g. the right to use articles in print or electronic coursepacks.

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