More on Elsevier's unacceptable relicensing of CC material. Can disadvantaged authors or purchasers sue?

There has been considerable twitterage this morning but silence from Elsevier… My guess so far is that thousands of authors have been seriously disadvantaged by Elsevier’s action. They may well have fallen foul of their funding body. They may be distressed that people are “required” to pay Elsevier for what they thought was a freely re-usable article. Meanwhile I assume that all the funds obtained by Rightslink are being distributed between them and Elsevier. Will any of the purchasers be offered their money back? I am supported by knowledgeable commenters in my claim that Elsevier’s action is immoral , unethical and probably illegal. Charles Oppenheim (a distinguished expert in this area) writes in a comment.

MIKE TAYLOR IS CORRECT. states that no further legal terms may be applied to a CC BY licence that in any way restrict third party use of materials. My reading of it all is as follows: author paid money to have the item licensed under CC BY. Elsevier is in breach of that agreement. Author is now entitled to claim breach of contract by Elsevier, and to put item up themselves somewhere under CC BY terms. Author is also entitled to contact Elsevier and insist all restrictions on use are removed. Finally, author can sue Elsevier for damages – the cost of the OA licence plus all subsequent costs. My question is as follows: has anyone contacted the author? Is the author aware of what has been done?

The twitter commentary generally agreed that Elsevier was in legal breach of the contract with the author. There is no question that Elsevier through Rightslink are asserting ownership and copyright. I read Elsevier’s “Molecular phylogenetic and Evolution” – or rather my machines do. Here’s a typical paper It’s All-rights reserved as well as CC-NC in the HTML version. When we go to Rightslink as a student writing a dissertation we get: elsevier6
you are REQUIRED to get Elsevier’s permission. This appears to be a legal statement which Elsevier has no right to make. And here is a specifically non-commercial company (whatever that is – trading is a commercial activity);
You are REQUIRED to have Elsevier review your request.

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4 Responses to More on Elsevier's unacceptable relicensing of CC material. Can disadvantaged authors or purchasers sue?

  1. Alicia Wise says:

    Hi Peter,
    As noted in the comment thread to your blog back in August we are improving the clarity of our OA license labelling (eg on ScienceDirect) and metadata feeds (eg to Rightslink). This is work in progress and should be completed by summer. I am working with the internal team to get a more clear understanding of the detailed plan and key milestones, and will tweet about these in due course.
    With kind wishes,
    Dr Alicia Wise
    Director of Access and Policy

  2. David says:

    Not sure if things have changed in the last day, but visiting that article today, it is CC BY-NC-ND , that is, there is both a noncommercial and no derivative works restrictions. Maybe the no derivative works wasn’t there yesterday? However, if it was, a dissertation that includes a chapter would be considered a derivative work and therefore not allowed. Additionally, many universities make commercial use of their dissertations. Many universities deposit their dissertations in Proquest Dissertations and receive payment for those dissertations. This is a commercial act, even if the university is a non-profit.
    All this is to say that one should not publish places that are more restrictive than CC-BY. Any journal that uses the noncommercial or nonderivative clauses is trying to have the best of both worlds and is hurting academic freedom.

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