Why does Elsevier require an exclusive rights transfer to publish Open Access?

There’s been an ongoing push by those in the open access movement to convince authors and publishers that a copyright transfer is not needed to publish scholarly works. The default in the system still seems to be that authors need to transfer their copyright to publishers and then publishers will grant some ‘author rights’ back to the author so that they can still make use of their works.

Typically publishers will justify this copyright transfer with the following reasons:

  • To protect the copyright of the article. (e.g. Wiley)
  • For a wide dissemination of the article (e.g. Springer)
  • To increase the financial income of the publisher as a trade-off for the services they provided freely to the author. (e.g. Canadian Veterinary Journal)

The issue with these reasons is that all the above could still be accomplished via a license agreement. The author doesn’t need to transfer ownership of their work – their copyright – in order for a publisher to protect it, widely disseminate it, or make a profit off of it. They just need to give the publisher the right to do all these things. With a license agreement authors’ retain copyright, but grant rights to the publisher to use the article in these ways.

Authors signing away copyright is what creates all these horror stories of authors being not allowed to share their work as they please. Authors often act, and rightly so, that because they put weeks, months, or years into a research article, that they should be able to do with it what they want. Unfortunately though, once they sign that publishing agreement and don’t read the fine print – like none of us do – they lose the ability to do that.

Image result for ben wyatt legal language

Yes, publishers do ‘provide back’ some author rights and authors can also rely on copyright exceptions, like Fair Dealing, for sharing/using their own work, but determining what falls under these ‘granted-back’ author rights and copyright exceptions is very complicated and unclear.

Giving away your copyright, but hoping in the benevolence of the new owner or the protections in the legal system will save you is generally not a good strategy…. It’s kinda like renting out a room in your house and giving the new tenant the only set of keys and just hoping they will be home to let you in all the time. Not a good idea. A better system would be to give the renter a version of your keys. You don’t need to give them everything and trust to get some benefits back.

There’s been some great initiatives attempting to solve this ‘assigning copyright’ problem. Open Access attempts to solve a bigger problem: lack of access to research, and also solves this one along the way by making articles available under open licenses. Allowing both authors and users to have broad rights to use articles in perpetuity. Typically since most of these open licenses are Creative Commons, publishers allow the authors to retain copyright ownership.

There are also more focused attempts to solve this problem like the SPARC Author Addendum. An author can submit this as a short addendum with their publishing contract and the language in the addendum overrides any overly strict terms in the contract and ensures that the author retains copyright and the publisher still has the rights they need to publish.

The SPARC Author Addendum is a very nifty and clever tool. Unfortunately though, use of it appears to be extremely low. One of the reasons often pointed to for it’s low usage is that publishers typically have click-through licenses for submitting publications now, which means nowhere to attach the addendum. Even finding who you would send the addendum too when submitting can be a challenge. Being very inconvenient makes it less likely to be used.

I think the bigger reason though is that those who are sold on the reasons behind the Author Addendum  – and not transferring away copyright – are those who are very aware of the issues with scholarly publishing. Those with this awareness are, of course, the ones who publish open access (because they realize how important it is) and wouldn’t bother publishing with publishers who require copyright transfers in the first place. The SPARC Author Addendum is kinda a solution for no-one. If you don’t care, you’re not going to use it, if you do care, you’re not going to need it.

Some publishers have realized the red flags that come with signing away copyright and so have moved to letting authors keep copyright and just license the necessary publication rights. Some though, like Nature Journals, have done this in a very misleading way.

Nature lets authors retain copyright, but asks for an exclusive license/right to publish.

This sounds like what I was arguing for right? What could be wrong with this?

Well, the ‘exclusive’ here changes things, because it means the author no longer has this right, the publisher just has it. It is exclusive. Also, by ‘right to publish’, Nature includes the rights to distribute, transmit, reproduce, publicly preform, lease, translate… the list goes on. What Nature is doing with an ‘exclusive’ license to publish is taking all the rights and allowing the author to keep copyright in name only. Urgh.

So, people like me, who do outreach and teaching to authors about these issues, have to tell authors to watch out for a number of things. Don’t transfer copyright, but also watch for language like ‘exclusive rights’ or anything similar in the contract. It’s hard to explain this to authors, and even harder for authors to work through a publisher contract and identify this stuff.

That is why, as I said before, the real solution here is Open Access. With Open Access the author can retain ownership of their rights!

….

Yah… Nope. Unfortunately things in scholarly publishing are never that easy. Let’s talk open access publishing at Elsevier.

When you publish open access with Elsevier they require an exclusive license transfer that essentially gives them all the same exclusive rights to distribute/publish that Nature takes.

I was trying to wrap my head around this on Twitter the other day. If an article is published with CC-BY license this essentially means that every user has distribution/publishing rights. Any user, including the author, can use the article however they want as long as they cite the author. Elsevier’s exclusive license transfer just seems to mean that author doesn’t own these rights, Elsevier does. But why does Elsevier need to own these rights when everyone else already has them? I was struggling to understand.

Others were also confused by this and were suggesting some explanations why. The one that seems to make the most sense was that it was just Elsevier covering their bases. That they just were claiming ownership of these rights for long term security in case something unpredictable happens.

Matt Ruen (@winterking07) got me thinking a bit more critically about this though and I also stumbled upon this article from the Editor-of-Chief of DOAJ, Tom Olijhoek, which dove into the complexity of open access publishing and exclusive right transfers.

There is one big area where Elsevier’s exclusive license transfer has an impact on how articles can be shared or used by the author: When the author publishes with a Creative Commons license that has more restrictions than CC-BY.

For example, most Elsevier journals allow authors to publish open access with a ‘no commercial use’ and ‘no derivatives’ Creative Commons license. Authors often elect for this license because they don’t want their work to be used commercially or derivatives made of it. i.e. They don’t want people to be able to sell their research, which they believe should be free, or make changes to it and represent it. If a user wanted to do one of these things, the author might still be ok with it, they just want the user to ask their permission first.

With Elsevier’s exclusive rights transfer though, the author no longer owns these rights. So if there was a editor putting together a collection of important articles in a book to sell to libraries and this editor wanted to include this author’s article, they would need Elsevier’s permission not the authors. Elsevier would be the one making royalties off of it, not the author.

Publishing an open access article CC-BY-NC-ND with Elsevier, does not do what most authors expect it does. It does not stop users from selling it or changing it without the author’s permission, it gives permission rights to Elsevier. It also allows Elsevier the right to sell and change the article however they want. Elsevier owns the distribution rights, not the author.

So if you are publishing open access with Elsevier and debating between a CC-BY or CC-BY-NC-ND license, just be aware that NC-ND doesn’t stop your article from being used those ways, what it does is allow Elsevier, not you, the right to allow those uses.

I seem to go after Elsevier a lot on this blog, but it’s because of stuff like this. Publishing a scholarly paper should not require an copyright or exclusive license transfer, publishing an open access paper especially so.

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About Ryan Regier

Doing Library Stuff. Follow me on twitter at: @ryregier
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