In response to my post Copyright from the lens of reality and other rebuttals of his original post, Elseviers General Counsel Mark Seeley has provided a lengthy comment. Here’s my response (also posted as a comment on the original article, but I’m waiting for it to be moderated.)
Hi, Mark, thanks for engaging. You write:
With respect to the societal bargain, I would simply note that, in my view, the framers believed that by providing rights they would encourage creative works, and that this benefits society as a whole.
Here, at least, we are in complete agreement. Where we part company is that in my view the Eldred v. Ashcroft decision (essentially that copyright terms can be increased indefinitely) was a travesty of the original intent of copyright, and clearly intended for the benefit of copyright holders rather than that of society on general. (I further note in passing that those copyright holders are only rarely the creative people, but rights-holding corporations whose creative contribution is negligible.)
[Journal] services and competencies need to be supported through a business model, however, and in the mixed economy that we have at the moment, this means that many journals will continue to need subscription and purchase models.
This is a circular argument. It comes down to “we use restrictive copyright on scholarly works at present, so we therefore need to continue to do so”. In fact, this this is not an argument at all, merely an assertion. If you want it to stick, you need to demonstrate that the present “mixed economy” is a good thing — something that is very far from evident.
The alternatives to a sound business model rooted in copyright are in my view unsustainable. I worry about government funding, patronage from foundations, or funding by selling t-shirts—I am not sure that these are viable, consistent or durable. Governments and foundations can change their priorities, for example.
If governments and foundations decide to stop funding research, we’re all screwed, and retention of copyright on the papers we’re no longer able to research and write will be the least of our problems. The reality is that virtually everyone in research is already dependent on governments and foundations for the 99% of their funding that covers all the work before the final step of publication. Taking the additional step of relying on those same sources for the last 1% of funding is eminently sensible.
On Creative Commons licences, I don’t think we have any material disagreement.
Now we come to the crucial question of copyright terms (already alluded to via Eldred v. Ashcroft above). You content:
Copyright law was most likely an important spur for the author or publisher to produce and distribute the work [that is now in the public domain] in the first place.
In principle, I agree — as of course did the framers of the US Constitution and other lawmakers that have passed copyright laws. But as you will well know, the US’s original copyright act of 1790, which stated its purpose as “encouragement of learning”, offered a term of 14 years, with an optional renewal of a further 14 years if the author was still alive at the end of the initial term. This 14-year was considered quite sufficient to incentivise the creation of new works. The intent of the present law seems to be that authors who have been dead for 70 years still need to receive royalties for their works, and in the absence of such royalties would not have created in the first place. This is self-evident nonsense. No author in the history of the world every said “I would have written a novel if I’d continued to receive royalties until 70 years after my death, but since royalties will only last 28 years I’m not going to bother”.
But — and this can’t be stated strongly enough — even if there were some justification for the present ridiculous copyright terms in the area of creative works, it would still say nothing whatsoever about the need to copyright scientific writing. No scientific researcher ever wrote a paper who would not have written it in the absence of copyright. That’s what we’re talking about here. One of the tragedies of copyright is that it’s been extruded from a domain where it has some legitimate purpose into a domain where it has none.
The Budapest Open Access Initiative said it best and most clearly: “the only role for copyright in this domain [scholarly research] should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited“. (And several of the BOAI signatories have expressed regret over even the controlling-integrity-of-the-work part of this.)
See also David Roberts’ response to Seeley’s posting.
May 7, 2015
This post is a response to Copyright from the lens of a lawyer (and poet), posted a couple of days ago by Elsevier’s General Counsel, Mark Seeley. Yes, I am a slave to SIWOTI syndrome. No, I shouldn’t be wasting my time responding to this. Yes, I ought to be working on that exciting new manuscript that we SV-POW!er Rangers have up and running. But but but … I can’t just let this go.
Copyright from the lens of a lawyer (and poet) is a defence of Elsevier’s practice of having copyright encumber scientific publishing. I tried to read it in the name of fairness. It didn’t go well. The very first sentence is wrong:
It is often said that copyright law is about a balance of interests and communities, creators and users, and ultimately society as a whole.
No. Copyright is not a balance between competing interests; it’s a bargain that society makes. We, the people, give up some rights in exchange for incentivising creative people to make new work, because that new work is of value to society. To quote the US constitution’s helpful clause, copyrights exist “To promote the Progress of Science and useful Arts” — not for authors, but for wider society. And certainly not of publishers who coerce authors to donate copyright!
(To be fair to Seeley, he did hedge by writing “It is often said that copyright law is about a balance”. That is technically true. It is often said; it’s just wrong.)
Well, that’s three paragraphs on the first sentence of Elsevier’s defence of copyright. I suppose I’d better move on.
The STM journal publishing sector is constantly adjusting to find the right balance between researcher needs and the journal business model, as refracted through copyright.
Wrong wrong wrong. We don’t look for a balance between researchers needs (i.e. science) and the journal business model. Journals are there to serve science. That’s what they’re for.
Then we have the quote from Mark Fischer:
I submit that society benefits when the best creative spirits can be full-time creators and not part-timers doing whatever else (other than writing, composing, painting, etc.) they have to do to pay the rent.
This may be true. But it is totally irrelevant to scholarly copyright. That should hardly need pointing out, but here it is for those hard of thinking. Scholars make no money from the copyright in the work they do, because (under the Elsevier model) they hand that copyright over to the publisher. Their living comes in the form of grants and salaries, not royalties.
Ready for the next one?
The alternatives to a copyright-based market for published works and other creative works are based on near-medieval concepts of patronage, government subsidy […]
Woah! Governments subsidising research and publication is “near-medieval”? And there we were thinking it was by far the most widespread model. Silly us. We were all near-medieval all this time.
Someone please tell me this is a joke.
Moving swiftly on …
Loud advocates for “copyright reform” suggest that the copyright industries have too much power […] My comparatively contrarian view is that this ignores the enormous creative efforts and societal benefits that arise from authoring and producing the original creative work in the first place: works that identify and enable key scientific discoveries, medical treatments, profound insights, and emotionally powerful narratives and musical experiences.
Wait, wait. Are we now saying that … uh, the only reason we get scientific discoveries and medical treatment because … er … because of copyright? Is that it? That can’t be it. Can it?
Copyright has no role in enabling this. None.
In fact, it’s worse than that. The only role of copyright in modern scholarly publishing is to prevent societal benefits arising from scientific and medical research.
The article then wanders off into an (admittedly interesting) history of Seeley’s background as a poet, and as a publisher of literary magazines. The conclusion of this section is:
Of course creators and scientists want visibility […] At the very least, they’d like to see some benefit and support from their work. Copyright law is a way of helping make that happen.
This article continues to baffle. The argument, if you want to dignify it with that name, seems to be:
- poets like copyright
- => we copyright other people’s science
- => … profit!
Well, that was incoherent. But never mind: finally we come to part of the article that makes sense:
- There is the “idea-expression” dichotomy — that copyright protects expression but not the fundamental ideas expressed in a copyright work.
This is correct, of course. That shouldn’t be cause for comment, coming from a copyright lawyer, but the point needs to be made because the last time an Elsevier lawyer blogged, she confused plagiarism with copyright violation. So in that respect, this new blog is a step forward.
But then the article takes a sudden left turn:
The question of the appropriateness of copyright, or “authors’ rights,” in the academic field, particularly with respect to research journal articles, is sometimes controversial. In a way quite similar to poets, avant-garde literary writers and, for that matter, legal scholars, research academics do not rely directly on income from their journal article publishing.
Er, wait, what? So you admit that scholarly authors do not benefit from copyright in their articles? We all agree, then, do we? Then … what was the first half of the article supposed to be about?
And in light of this, what on earth are we to make of this:
There is sometimes a simplistic “repugnance” about the core publishing concept that journal publishers request rights from authors and in return sell or license those rights to journal subscribers or article purchasers.
Seeley got that much right! (Apart from the mystifyingly snide use of “simplistic” and the inexplicable scare-quotes.) The question is why he considers this remotely surprising. Why would anyone not find such a system repugnant? (That was a rhetorical question, but here’s the answer anyway: because they make a massive profit from it. That is the only reason.)
Well, we’re into the final stretch. The last paragraph
Some of the criticism of the involvement of commercial publishing and academic research is simply prejudice, in my view;
Yes. Some of us are irrationally prejudiced against a system where, having laboriously created new knowledge, it’s then locked up behind a paywall. It’s like the irrational prejudice some coal-miners have against the idea of the coal they dig up being immediately buried again.
And finally, this:
Some members of the academic community […] base their criticism on idealism.
Isn’t that odd? I have never understood why some people consider “idealism” to be a criticism. I accept it as high praise. People who are not idealists have nothing to base their pragmatism on. They are pragmatic, sure, but to what end?
So what are we left with? What is Seeley’s article actually about? It’s very hard to pick out a coherent thread. If there is one, it seems to be this: copyright is helpful for some artists, so it follows that scholarly authors should donate their copyright to for-profit publishers. That is a consequence that, to my mind, does not follow particularly naturally from the hypothesis.
May 6, 2015
While Mike’s been off having fun at the Royal Society, this has been happening:
Lots of feathers flying right now over the situation at the Medical Journal of Australia (MJA). The short, short version is that AMPCo, the company that publishes MJA, made plans to outsource production of the journal, and apparently some sub-editing and administrative functions as well, to Elsevier. MJA’s editor-in-chief, Professor Stephen Leeder, raised concerns about the journal getting involved with one of the most ethically problematic publishing companies in existence. And also about this having been done without consultation.
He was sacked for his trouble.
After Leeder was pushed out, his job was offered to MJA’s deputy editor, Tania Janusic. She declined, and resigned from the journal, as did 19 of the 20 members of the journal’s editorial advisory committee. (Some accounts say 18. Anyway, 90%+ of the committee is gone.)
When we first discussed the situation via email, Mike wrote, “My take is that at the present stage of the OA transition, editorial board resignations from journals controlled by predatory legacy publishers are about the most important visible steps that can be taken. Very good news for the world, even though it must be a mighty pain for the people involved.”
Yes. I feel pretty bad for the people involved, but I’m hugely supportive of what they’re doing.
I don’t know what we can do to materially contribute here, beyond amplifying the signal and lending our public support to Leeder, Janusic, and the 19 editors who resigned. That’s a courageous thing to do, but no-one should have to do it. The sooner we move to a world where scientific results and other forms of scholarly publication are freely available to all, instead of under the monopolistic control of a handful of exploitative, hugely profitable corporations, the better.
A short list of links, nowhere near exhaustive, if you’d like to read more:
UPDATE: In the first comment below, Alex Holcombe pointed us to this post written by Leeder himself, explaining the reasoning and consequences of his decision.
Also, dunno how I forgot this – if you haven’t already, you might be interested in signing the Cost of Knowledge boycott against Elsevier. Here’s the link.
December 23, 2014
Arriving as an early Christmas present, and coming in just a week before the end of what would otherwise have been a barren 2014, my paper Quantifying the effect of intervertebral cartilage on neutral posture in the necks of sauropod dinosaurs is out! You can read it on PeerJ (or download the PDF).
Yes, that posture is ludicrous — but the best data we currently have says that something like this would have been neutral for Diplodocus once cartilage is taken into account. (Remember of course that animals do not hold their necks in neutral posture.)
The great news here is that PeerJ moved quickly. In fact here’s how the time breaks down since I submitted the manuscript (and made it available as a preprint) on 4 November:
28 days from submission to first decision
3 days to revise and resubmit
3 days to accept
15 days to publication
TOTAL 49 days
Which of course is how it ought to be! Great work here from handling editor Chris Noto and all three reviewers: Matt Bonnan, Heinrich Mallison and Eric Snively. They all elected not to be anonymous, and all gave really useful feedback — as you can see for yourself in the published peer-review history. When editors and reviewers do a job this good, they deserve credit, and it’s great that PeerJ’s (optional) open review lets the world see what they contributed. Note that you can cite, or link to, individual reviews. The reviews themselves are now first-class objects, as they should be.
At the time of writing, my paper is top of the PeerJ home-page — presumably just because it’s the most recent published paper, but it’s a nice feeling anyway!
A little further down the front-page there’s some great stuff about limb function in ratites — a whole slew of papers.
Well, I’m off to relax over Christmas. Have a good one, y’all!
November 22, 2014
Matt’s post yesterday was one of several posts on this blog that have alluded to Clay Shirky’s now-classic article How We Will Read [archived copy]. Here is the key passage that we keep coming back to:
Publishing is not evolving. Publishing is going away. Because the word “publishing” means a cadre of professionals who are taking on the incredible difficulty and complexity and expense of making something public. That’s not a job anymore. That’s a button. There’s a button that says “publish,” and when you press it, it’s done.
In ye olden times of 1997, it was difficult and expensive to make things public, and it was easy and cheap to keep things private. Privacy was the default setting. We had a class of people called publishers because it took special professional skill to make words and images visible to the public. Now it doesn’t take professional skills. It doesn’t take any skills. It takes a WordPress install.
… and of course as SV-POW! itself demonstrates, it doesn’t even need a WordPress install — you can just use the free online service.
This passage has made a lot of people very excited; and a lot other people very unhappy and even angry. There are several reasons for the widely differing responses, but I think one of the important ones is a pun on the word “publish”.
When Shirky uses the word, he is talking about making something public, available to the world. Which after all is its actual meaning.
But when academics use the word “publish” they usually mean something quite different — they mean the whole process that a research paper goes through between submission and a PDF appearing in a stable location (and in some cases, copies being printed). That process involves many other aspects besides actual publishing — something that in fact Shirky goes straight on to acknowledge:
The question isn’t what happens to publishing — the entire category has been evacuated. The question is, what are the parent professions needed around writing? Publishing isn’t one of them. Editing, we need, desperately. Fact-checking, we need. For some kinds of long-form texts, we need designers.
And this is dead on target. Many writers need editors[*], to varying degrees. Fact-checking could be equated with peer-review, which we pretty much all agree is still very important. Most academic publishers do a certain amount of design (although I suspect that in the great majority of cases this is 99% automatic, and probably involves human judgement only in respect of where to position the illustrations).
But due to the historical accident that it used to be difficult and costly to make and distribute copies, all those other tasks — relatively inexpensive ones, back in the days when distribution was the expensive thing — have become bundled with the actual publishing. With hilarious consequences, as they say. You know, “hilarious” in the sense of “tragic, and breathtakingly frustrating”.
That’s why we’re stuck in an idiot world where, when we need someone to peer-review our manuscript, we usually trade away our copyright in exchange (and not even to the people who provide the expert review). If you stop and think about that for a moment, it makes absolutely no sense. When I recently wrote a book about Doctor Who, I had several people proofread it, but I didn’t hand over copyright to any of them. My ability to distribute copies was not hobbled by having had independent eyes look it over. There is no reason why it should have, and there is no reason why our ability to distribute copies of our academic works should be limited, either.
What we need is the ability to pay a reasonable fee for the services we need — peer-review, layout design, reference linking — and have the work published freely.
Well, wouldja lookit that. Looks like I just invented Gold Open Access.
Is publishing just a button? Yes. Making things public is now trivial to do, and in fact much of what so-called publishers now do is labouring to prevent things from being public. But we do need other things apart from actual publishing — things that publishers have historically provided, for reasons that used to make sense but no longer do.
Exactly what those things are, and how extensive and important they are, is a discussion for another day, but they do exist.
[*] Note: the whole issue of academic publishing is further confused by another pun, this one on the word “editor”. When Shirky refers to editors, he means people who sharpen up an author’s prose — cutting passages, changing word choices, etc. Academic editors very rarely do that, and would be resented if they did. In our world, an “editor” is usually the nominally independent third party who solicits and evaluates peer-reviews, and makes the accept/reject decision. Do we need editors, in this academic sense? We’ll discuss that properly another time, but I’ll say now that I am inclined to think we do.
October 28, 2014
It’s nearly two years since Alexander Brown wrote Open access: why academic publishers still add value for the Guardian, in which he listed ways that he feels publishers make a contribution. I wrote a lengthy comment in response — long enough that it got truncated at 5000 characters and I had to post a second comment with the tail end. At the time, I intended to turn that comment into an SV-POW! post, but for some reason I never did. Belatedly, here it is.
I’m a bit nonplussed by this article, in which a publisher lists a lot of important services that they claim to provide, nearly all of which turn out to be either not important at all (if not actively harmful) or provided for free by academics. Let’s go through them one by one, and see how they measure up against the average cost to academia of $5333 per paywalled academic paper.
strong, skilled editors to ensure that research can be universally understood
It is authors who make their work understood. As the author of a dozen published papers myself, I’ve certainly never received any help from an editor to make my work more comprehensible. But even if I had, this would have been done by a handling editor, who is a volunteer academic.
to recognise emerging fields and create new journals
Publisher don’t recognise emerging fields, researchers do. The last thing we need is more journals — there are already far more than anyone can keep track of. The more fruitful trend is the consolidation into a smaller number of more generalist journals, with tools for finding papers relevant to each individual researcher’s interest. (PLOS ONE exemplifies this.)
to build and maintain the brands and reputations of journals.
Journal brands are actively harmful to science. Please stop building and maintaining them.
recruitment and management of editorial review boards
Yes — this, at last, is a real cost in return for a real benefit.
coordination of peer review to ensure the integrity of the scholarly record
This is done by volunteer academics at no cost to the publisher.
Yes, editorial board members and reviewers are by and large unpaid. However there are still scores of people whose full time jobs are managing this process for a growing body of scientific literature.
This seems more like confession of inefficiency than a claim of achievement. No doubt Google could double the number of managers they have to look after their engineers; but that would hardly result in doubling their output. The real question here should be why traditional publishers feel they need so many staff to do so little.
helping customers learn how best to find what they need
How does this happen? I have never had a publisher help me to find anything.
rigorous efforts to acquire content
This means sending spam emails inviting researchers to submit to journals. Like everyone else I know, I bin these on receipt. Researchers know what journals they want to publish in, and when they discover new journals it’s by word of mouth from trusted colleagues.
publicise the brilliance of our authors
Please. This never happens. Authors need to publicise their own work, with or without the help of their institutions, but certainly without significant help from publishers. Often the publisher’s most significant contribution to the publicity process is to release a paper prematurely, thus destroying any attempt at co-ordinating press embargoes.
Developing systems and platforms that can cost well into the tens of millions of dollars/pounds/euros
Again, the fact that a publisher spends this much only shows how inefficient they are. There are several free journal-management systems, including Annotum (used by PLOS Currents) and Open Journal Systems (used by 11,500 journals). If publishers don’t use these tools, that’s no reason to charge researchers more.
with the advent of mobile technology, the job becomes exponentially more difficult as we add “whenever they want it” to the list of our customers’ needs
I have no idea what this means. Any open-access journal’s article are always free “whenever they want it”, whatever device someone is reading on.
While the dissemination of research may not require ink and paper like it used to, distribution remains a very real cost
Yes. To pick a well-known large-scale example, it costs arXiv about $7 per paper to accept, host, archive and serve each of its papers indefinitely. A bit less than $5333, admittedly.
Also included in these activities are archive projects like the Springer Book Archives, a massive undertaking to digitise more than 150 years of previously unavailable titles
This is indeed a valuable programme. But it has nothing to do with ongoing publishing, and is a red herring in the current discussion.
for OA authors Springer deposits a researcher’s work into the institutional repositories these scientists are often required to use, helping to provide further access to scholarly works.
This is good. It saves the author a good fifteen minutes. £5333 well spent!
It is hard to imagine how anyone with an internet connection could do this with the speed, efficiency and added value with which publishers operate
On the contrary: it’s hard to understand how publishers manage to do it so inefficiently.
I just find all this baffling. Any researcher who has actually been through the process of publication knows that it is researchers who do all the significiant work: not only the research, but the writing, the preparation of illustrations, the editorial process, the peer-reviewing, the copy-editing, and increasingly even the typesetting. Hosting, archiving and replication can be done for $7 per paper. So I still don’t see where the publishers are adding any value that is of value to the academy.