Copyright from the lens of reality

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.


8 Responses to “Copyright from the lens of reality”

  1. Frosted Flake Says:

    Thank you Mike. I find it very limiting to have information with held on the assumption I am going to write a check. If I were that guy, I would be writing quite a few checks. I might be, but I doubt I am unusual in that regard. Extrapolating, I sense there are millions of creative people being kept in the dark because some publisher or other wants money. When I think of the progress that could by made by this many if not for those few, I am inspired to throw them out of the Boat. Poet or not, it is in no way surprising the publishers chief lawyer should enthusiastically attempt to conflate art with science.

    I do not believe you are wasting time by addressing this matter. For if I were to be deprived of the opportunity to enjoy a poem because I failed to cross someones palm with silver, I, personally, MIGHT be marginally poorer for the lack of entertainment. If on the other hand mass numbers of working scientists are deprived of the latest data, then we all are definitely poorer because the creators of our common future are being held back. For money.

    The phrase to be used here is ‘rent seeking behavior’. This is a problem that only needs to be solved once. I suggest a computer program be written with the object of replacing the science publishing industry, en bloc. Wikipedia might be a good starting point. Computers have many shortcomings. But greed is not among them.

  2. Mr Baku Says:

    Thank you, Mike, for this analysis. I am hopefully supporting your arguments by adding the following:

    1. While (as you admit) this is in parts an entirely fine profile of an industry veteran with an interesting backstory, it is a bizarre argument and narrative overall, and it shows the problem with this kind of article on Elsevier Connect. The article aims to be informative about copyright and its history. But an article like this published at any other venue would surely have to have a COI statement to the effect that Mr Seeley’s views are hardly neutral – the main content business of Elsevier can *only* benefit from this opinion. I would encourage Elsevier Connect editors to stick to product showcases, interviews, and histories etc. if it wants us to take the Connect venue seriously. If they write about copyright matters and reform, at least accurately represent the viewpoints within this debate and get a journalist/writer to refine the piece for cohesion.

    2. The conflation of – (a) creative artists/writers making a living off their work with (b) researchers searching for truth while publicly or privately funded in the employ of an institution – is a classic distraction tactic by traditional copyright proponents in scholarly journal publishing. Again, while Mr Seeley may say he is discussing copyright in general, the arguments and language towards the end clearly embed the piece in the landscape of traditional scholarly journal publishers, and the open access movement. The “(and poet)” of the title is a pure red herring.

    3. Your points about idealism are spot on. It is a ridiculous statement to suggest an opinion is weaker if based on an ideal. Unless you believe in a divine law, I suppose, law is just the expression of a particular society’s ideals, right? One of the points of those of us who support copyright reform is that we believe that copyright law in *scholarly communication* (not poetry, because I cannot speak for it) has moved away from society’s ideals and towards an industry’s financial interests.

    Again, thank you.

  3. Mike Taylor Says:

    Thank you, Mr. Baku, very helpful points.

  4. I think that all really revolves around this, with that post as a sort of straw man.

  5. Seely has responded. I’m posting my response here as well, so that I can avoid the usual delay publishers insert into scholarly communication.


    Firstly, thanks for responding to the criticism. I take issue with several of your responses.

    >it appears to me that David Roberts is saying that he can publish his research work directly,
    have it recognized, and therefore does not need to publish in a professionally organized journal.

    No. I said that my employment does not hinge on a publisher owning copyright in my work. It *may* be that the journal in which my work appears has an effect on how people view my work, but in mathematics people can tell when a paper is groundbreaking for themselves, by reading it on the arXiv, often years before a publisher picks it up. That’s correct: I could be hired on the basis of a body of work that has been made public yet only published in a journal *after* I was hired. Copyright in more than half of my published/accepted papers is, or will be, held by me. This has no effect on whether I get paid or not, it is a function of the venues in which I choose to publish.

    And I dispute the insinuation that ‘professionally organized journal’ equates to ‘publisher-owned copyright’. Also, in my area, there are successful open access journals that are run entirely by academics, and nominally owned by an on-paper organisation — and which leave copyright with the authors.

    > I think critics of current copyright law should explain why and how their ideal world would be better for creators, consumers and society as a whole.

    This is not what people that I am reading are complaining about: they are disputing the conflation of copyright issues for creative arts (poetry, for instance) and in science. If you wish to lump scientists paid with government funds in with independent musicians and artists as ‘creators’, then I’m afraid you have missed the point. If you wish to lump scientists qua readers of scientific papers, and people needing access to the latest medical research on their condition, and industrial researchers solving technological/ecological/whatever problems facing humanity in with people who listen to music and watch movies and buy volumes of poetry as ‘consumers’ then you have missed the point. If you think that society consumes science and creative arts in the same way, then you have missed the point.

    If I, as a practicing scientist, decided to go into law and then set the tone for the poetry-publishing world as I experienced it in my publishing career—by requesting poets assign the publisher copyright, and then letting them rely on government grants for income, competing for same by making poets strive to get their work accepted in the highest-cited and most exclusive journals—then I think people might raise a fuss that I was applying an inappropriate publishing model to their field. And that is what people are complaining about with regards to your article. They are not necessarily complaining that copyright as a whole is bad (are you conflating open-access advocates with Pirate Party supporters? I suspect one famous librarian from Colorado does), just that it would be more beneficial to society if copyright were not an obstruction to the practice and consumption of science. And if you think copyright restrictions are not an obstruction to science, then you need to go to the coalface.

    >providing rights they would encourage creative works

    and this is where you betray your viewpoint: scientific articles, while creative works in a loose sense, *aren’t incentivised by copyright*. Their production is by people on a salary, in most cases. Such people are not relying on copyright to ensure they have funds. The people (or should I say corporations?) who rely on copyright are publishers, and if you said that up front, then people would at least credit the honesty, even if they disagreed with your position.

  6. […] 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 […]

  7. Mike Taylor Says:

    Thank you, David, for these eminently sensible comments. See also my own response to Seeley’s followup.

  8. […] the world of scholarship, things work very differently. Researchers write papers, and their copyright is (at least initially) owned by the creators. The […]

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