"Dialogue" with Elsevier – story-2 ("Despicable" Legal Weasel Words)

ContentMine is going to mine the whole scholarly literature (10,000 articles every day). We’d hoped to do this some months ago and one of the reasons is the massive pushback from major publishers. Technically, legally , politically.
UK government note: You are about to spend about 40 M GBP each year with Elsevier. The real costs are about 2.5 M GBP according to Bjoern Brembs. A significant amount of the rest (even after the huge profit of ca 38% (yes!)) is spent on lobbyists, reps , lawyers, firewalls, captchas, etc. Much of their time is spent trying to make it as difficult as possible to create the Scholarly Commons [1] where we can read, use and re-use the literature without constantly looking up to worry about publishers.
So one of the aspects is legal agreements. We need legal agreement in all sorts of areas, buying houses, hiring staff, etc. These are often between two parties and they negotiate (e.g. on price and exactly what is included) and most of the time it’s relatively understood what the bargain is.
But not with Elsevier. Elsevier produce devious, complex, bespoke legal agreements unlike any other publisher. They neve use a standard form if they can complicate and mislead. You may think I’m being unfair and biassed, but I have spent many days challenging them over text and data mining. (TDM). They put in specific restrictions and clauses about what they hold onto. Despite the fact that it’s legal in UK, they try to persuade you that you have to make a separate agreement with them (an API). You don’t. It’s legal, probably, but it’s immoral and unethical.
Here’s the most recent unpleasantness. A common way to publish your work as Open Access is to pay the publisher (often a lot of money) to allow you to use a CC BY licence. And you retain all rights as author. Straightforward publishers like BMC have done this for 10 years and I have published with them perfectly happily
So when you hear that Elsevier’s licence is CC BY you think fine, I continue to own the paper and Elsevier have a non-exclusive right to use it.
But no. Elsevier has written weasel words into the small print. You no longer own the paper. It may be CC BY but it’s Elsevier’s. And the weasel words are there to look like you are getting what you paid for, but actually you have to be a lawyer to be sure that you have actually been fooled.
Does this matter? At first sight not. And if you trust Elsevier ,  maybe not. But I don’t, and nor does Heather Morrison and nor does Michael Eisen. So let’s listen to them:

Here’s one of the ubiquitous Elsevier staff trying to convince Michael, and here’s Michael’s repsonse. I’ll leave it there , the TL;DR is that this contract is misleading and should be rejected. Michael calls it “despicable”. I wish that Universities treated licences as serious and challenged them rather than letting Michael, Mike Taylor, Heather, Charles Oppenheim, Ross Mounce, me, etc. to to their work voluntarily. After all it’s the Universities who contract with the publishers, and they just don’t seem to care whether their money is well spent.
Read the following from MikeE. If you teach law students, set it as an exercise to pick holes in…
<quote from=”mikeEisen” >
http://www.michaeleisen.org/blog/?p=1915
Elsevier is tricking authors into surrendering their rights
By MICHAEL EISEN | Published: MAY 24, 2016
A recent post on the GOAL mailing list by Heather Morrison alerted me to the following sneaky aspect of Elsevier’s “open access” publishing practices.
To put it simply, Elsevier have distorted the widely recognized concept of open access, in which authors retain copyright in their work and give others permission to reuse it, and where publishers are a vehicle authors use to distribute their work, into “Elsevier access” in which Elsevier, and not authors, retain all rights not granted by the license. As a result, despite highlighting the “fact” that authors retain copyright, they have ceded all decisions about how their work is used, if and when to pursue legal action for misuse of their work and, crucially, if they use a non-commercial license they are making Elsevier is the sole beneficiary of commercial reuse of their “open access” content.
For some historical context, when PLOS and BioMed Central launched open access journals over a decade ago, they adopted the use of Creative Commons licenses in which authors retain copyright in their work, but grant in advance the right for others to republish and use that work subject to restrictions that differ according to the license used. PLOS and BMC and most true open access publishers use the CC-BY license, whose only condition is that any reuse must be accompanied by proper attribution.
When PLOS, BioMed Central and other true open access publishers began to enjoy financial success, established subscription publishers like Elsevier began to see a business opportunity in open access publishing, and began offering a variety of “open access” options, where authors pay an article-processing charge in order to make their work available under one of several licenses. The license choices at Elsevier include CC-BY, but also CC-BY-NC (which does not allow commercial reuse) and a bespoke Elsevier license that is even more limiting (nobody else can reuse or redistribute these works).
At PLOS, authors do not need to transfer any rights to the publisher, since the agreement of authors to license their work under CC-BY grants PLOS (and anyone else) all the rights they need to publish the work. However, this is not true with more restrictive licenses like CC-BY-NC, which, by itself, does not give Elsevier the right to publish works. Thus, Elsevier if either CC-BY-NC or Elsevier’s own license are used, the authors have to grant publishing rights to Elsevier.
However, as Morrison points out, the publishing agreement that Elsevier open access authors sign is far more restrictive. Instead of just granting Elsevier the right to publish their work:
Authors sign an exclusive license agreement, where authors have copyright but license exclusive rights in their article to the publisher**.
**This includes the right for the publisher to make and authorize commercial use, please see “Rights granted to Elsevier” for more details.
(Text from Elsevier’s page on Copyright).
This is not a subtle distinction. Elsevier and other publishers that offer it routinely push CC-BY-NC to authors under the premise that they don’t want to allow people to use their work for commercial purposes without their permission. Normally this would be the case with a work licensed under CC-BY-NC. But because exclusive rights to publish works licensed with CC-BY-NC are transferred to Elsevier, the company, and not the authors, are the ones who determine what commercial reuse is permissible. And, of course, it is Elsevier who profit from granting these rights.
It’s bad enough that Elsevier plays on misplaced fears of commercial reuse to convince authors not to grant the right to commercial reuse, which violates the spirit and goals of open access. But to convince people that they should retain the right to veto commercial reuses of their work, and then seize all those rights for themselves, is despicable.
– See more at: http://www.michaeleisen.org/blog/?p=1915#sthash.hvxs8VLo.V4v0Dea6.dpuf
 
 
[1] Maryann Martone’s phrase.