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.)

You continue:

[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.

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AMNH 460 left anterolateral view

Apatosaurines on the brain right now.

I’ve been thinking about the question raised by Jerry Alpern, a volunteer tour guide at the AMNH, regarding the recent Tschopp et al. (2015) diplodocid phylogeny. Namely, if AMNH 460 is now an indeterminate apatosaurine, pending further study, what should the museum and its docents tell the public about it?

Geez, Apatosaurus, it’s not like we’re married!

I think it’s a genuinely hard problem because scientific and lay perspectives on facts and hypotheses often differ. If I say, “This animal is Apatosaurus“, that’s a fact if I’m talking about YPM 1860, the genoholotype of Apatosaurus ajax; it would continue to be a fact even if Apatosaurus was sunk into another genus (as Brontosaurus was for so long). We might call that specimen something else, but there would always be a footnote pointing out that it was still the holotype of A. ajax, even if the A. part was at least temporarily defunct – the scientific equivalent of a maiden name.* For every other specimen in the world, the statement, “This animal is Apatosaurus” is a hypothesis about relatedness, subject to further revision.

* This is going to sound kinda horrible, but when one partner in a marriage takes the other’s surname, that’s a nomenclatural hypothesis about the future of the relationship.

Apatosaurine cervicals are the best cervicals.

Apatosaurine cervicals are the best cervicals.

Fuzzy science

Things that look fairly solid and unchanging from a distance – specifically, from the perspective of the public – often (always?) turn out to be fairly fuzzy or even arbitrary upon closer inspection. Like what is Apatosaurus (beyond the holotype, I mean) – or indeed, what is a planet.** There is no absolute truth to quest for here, only categories and hypotheses that scientists have made up so that we can have constructive conversations about the crazy spectrum of possibilities that nature presents us. We try to ground those categories and hypotheses in evidence, but there will always be edge cases, and words will always break down if you push them too hard. Those of us who work on the ragged frontier of science tend to be fairly comfortable with these inescapable uncertainties, but I can understand why people might get frustrated when they just want to know what the damned dinosaur is called.

** Triton, the largest body orbiting Neptune, is almost certainly a captured Kuiper Belt object, and it’s bigger than Pluto. Moon or planet? Probably best to say a former dwarf planet currently operating as a satellite of Neptune – but that’s a mouthful (and a mindful, if you stop to think about it), not a short, convenient, easily-digestible label. Any short label is going to omit important information. This is related to the problem of paper title length – below some threshold, making something shorter means making it incomplete.

What I would say

I suppose the short version that is most faithful to the Tschopp et al. results is:

This skeleton (AMNH 460) might be Apatosaurus or Brontosaurus or a third, new thing – scientists aren’t sure yet.

A reasonable follow-up sentence – and an answer to the inevitable “Why not?” – would be:

They have to look at 477 anatomical details for lots of skeletons and weigh all the evidence, and that takes time.

Personally, if I was talking to museum visitors I would lean in conspiratorially and say:

If you want to call it Apatosaurus or Brontosaurus, go ahead – those are both ‘live’ hypotheses, and even the world’s experts on this problem can’t tell you that you’re guessing the wrong way – at least not yet.

And if there was a kid in the group, I’d add:

Maybe you’ll be the one to figure it out!

What would you say?

My neck is fat.

My neck is fat.

P.S. I wouldn’t change the signage. It could still turn out to be Apatosaurus, and the Tschopp et al. results do not lend themselves to easy label-ification.

P.P.S. With some modification for taxonomy, all of this applies to the Field Museum diplodocid FMNH P25112 as well.

Reference

Tschopp E, Mateus O, Benson RBJ. (2015) A specimen-level phylogenetic analysis and taxonomic revision of Diplodocidae (Dinosauria, Sauropoda) PeerJ3:e857 https://dx.doi.org/10.7717/peerj.857

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.

duty_calls

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.

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.

[Today’s live-blog is brought to you by Yvonne Nobis, science librarian at Cambridge, UK. Thanks, Yvonne! — Mike.]

Session 1 — The Journal Article: is the end in sight?

Slightly late start due to trains – !

Just arrived to hear Aileen Fyfe University of St Andrews saying that something similar to journal articles will be needed for ‘quite some time’.

Steven Hall, IOP.

The article still fulfils its primary role — the registration, dissemination, certification and archiving of scholarly information. The Journal Article still provides a fixed point — and researchers still see the article as a critical part of research — although it is now evolving into something much more fluid.

Steve then outlined some of the initiatives that IOP have implemented. Examples include the development of thesauri — every article is ‘semantically fingerprinted’. No particular claims are made for IOP innovation — some are broad industry initiatives — but demonstrate how the journal article has evolved.

(Personal bias: as a librarian I like the IOP journal and ebook offering!) IOP have worked with RIN on a study on the researcher behaviour of physical sciences — to research the impact of new technology on researchers. Primary conclusion: researchers in the physical sciences are conservative and oddly see the journal article as most important method of communicating research. (This seems at odds with use of arXiv?)

Discussion

Mike Brady discusses the ‘floribunda’ of the 19th century scholarly publishing environment.

Sally Shuttleworth (Oxford) questions the move from the gentleman scholar to the publishing machinery of the 21st century and wonders if there will be a resurgence due to citizen science?

Tim Smith (CERN) proposes that change is being technologically driven.

Stuart Taylor (Royal Society publishing) agrees with Steve that there is disconnect between reality and outlandish speculations about what should be in place, and the ‘bells and whistles’ that publishers are adding in to the mix that are not used.

Cameron Neylon: what the web gives us the ability to separate content from display — and this gives us a huge opportunity — and many of us in the this room did predict the death of the article several years ago …(This was premature!)

Herman Hauser makes the valid point that it is well nigh impossible for a researcher now to understand the breadth of a whole field.

Ginny Barbour raises the question of incentives (the article still being the accepted de facto standard). The point was also raised that perhaps this meeting should be repeated with an audience 30 years younger…

No panel comment on this point, however I fear what many would say is that this meeting represents the apex of a pyramid, where these discussions have occurred for years in other conferences (for example, the various science online and force meetings) and have driven both innovation (novel publishing models) and the creation of tools.

I asked about (predictably enough) about use of arXiv — slightly surprised at the response to the RIN study.

Steve Hall: ‘science publishers are service providers’ — if scientific communities become clear about what they want, we can provide such services — but coherent thinking needs to underwrite this. Steve also questions the incentives put in place for researchers to publish in certain high impact journals and how this is damaging.

David Coloquhan raises the issues of perverse incentives for judging researchers, including altmetrics.

Steve Hall: arXiv won’t allow publishers on their governing bodies –and interestingly librarians (take note!) should be engaging with the storage of the data!

Aileen, in conclusion, questions how did the plurality of modes of communication we had in the 18th and 19th centuries get closed down to the level of purely journals? The issue of learned societies and their relationship with commercial agencies is often a cause for concern…

Session 2 How might scientists communicate in the future?

Mike Brady

the role of the speakers is to catalyse discussion amongst ourselves…

Anita de Waard (Elsevier)

350 years ago science was an individual enterprise, although now many large collaborations, much scientific discussion is still on a peer to peer level.

How do we unify the needs of the collective and individual scientists?

We need to create the systems of knowledge management that work for scientists, publishers and librarians.

Quotes John Perry Barlow: ‘Let us endeavour to build systems that allow a kid in Mali who wants to learn about proteomics to not be overwhelmed by the irrelevant and the untrue’ (It would be cruel to mention various issues with the Journal of Proteomics last year…)

Problem is the the paper is the overarching modus operandi. Citations to data are often citations to pictures. We need better ways of citing and connecting knowledge. ‘Papers are stories that persuade with data’, says Anita. She argues we need better ways of citing claims, and constructing chains of evidence that can be traced to their source.

For this we need tools and to build habits of citing evidence into all aspects of our educational system (starting at kindergarten)!

Another problem is data cannot be found or integrated (this to my view is something that the academic community should be tackling, not out-sourcing, which is the way I see this going…)

An understanding needs to evolve that science is a collective endeavour.

Anita is now covering scientific software (‘scientific software sucks’ is the quote attributed to Ben Goldacre yesterday) — it compares unfavourably to Amazon … not sure how true this is?

Anita is very dismissive of scientific software not being adequate — often code is written for a particular purpose. (My view is that this is not something that can easily be commercially outsourced — High energy physics anyone?)

Mark Hahnel, FigShare

(FigShare was built as a way for Mark to curate/publish his own research.)

Mark opens with policies from different funders (at Cambridge we are feeling the effect of these already) for data mandates — especially EPSRC: all digital outputs from funded research now must be made available.

Mark talks around the Open Academic Tidal Wave — sorry not a great link but the only one I can find (thanks Lou Woodley): and we are at level 4 of this.

Mark surveyed publishers about what they see the future of publishing in 2020 — and they replied ‘Version control on papers, data incorporated within the article’, but the technology is there already — and uses the example of F1000 Research.

Discussion

Mike Brady: It’s as well Imelda Marcos was not a scientist — following on from Anita’s claims that software for buying shoes is more fit for purpose than scientific software!

Herman Hauser: willing to fund things that help with an ‘evidence engine’ to avoid repeats of the MMR fiasco!

David Coloquhan: science is not the same as buying shoes! Refreshingly cynical.

Wendy Hall stresses the importance of linking information — every publisher should have a semantically linked website (and on the science of buying shoes).

Comment from the floor: Getting more data into repositories may not be exciting but is essential. Mark agrees — once the data is there you can do things with it, such as building apps to extract what you need.

Richard Sever (Cold Harbour Press) with a great quote: “The best way to store genomic data is in DNA.”

Mike Taylor: when we discuss how data is associated with papers we must ensure that this is ‘open’, this includes the APIs, to avoid repeating the ‘walled garden of silos’ in which we find ourselves now.

Question of electronic access in the future (Dave Garner) — how do we future-proof science? Very valid — we can’t access material from 1980s floppy disks!

Anita: data is entwined with software and we need to preserve these executable components. Issues returning to citation and data citations and incentives again which has been a pervasive theme over the last couple of days.

Cameron Neylon: we need to move to a situation where we can publish data itself, and this can be an incremental process, not the current binary ‘publish or not publish’ situation (which of course comes back to incentives).

In summary, Mark questions timescales, and Anita wonders how the Royal Society can bring these topics to the world?

Time for lunch, and now over to Matthew Dovey to continue this afternoon (alongside Steven Hall another of my former colleagues)!

I’ll try to live-blog the first day of part 2 of the Royal Society’s Future of Scholarly Scientific Communication meeting, as I did for the first day of part 1. We’ll see how it goes.

Here’s the schedule for today and tomorrow.

Session 1: the reproducibility problem

Chair: Alex Halliday, vice-president of the Royal Society

Introduction to reproducibility. What it means, how to achieve it, what role funding organisations and publishers might play.

For an introduction/overview, see #FSSC – The role of openness and publishers in reproducible research.

Michele Dougherty, planetary scientist

It’s very humbling being at this meeting, when it’s so full of people who have done astonishing things. For example, Dougherty discovered an atmosphere around one of Saturn’s moons by an innovative use of magnetic field data. So many awesome people.

Her work is largely to do with very long-term project involving planetary probes, e.g. the Cassini-Huygens probe. It’s going to be interesting to know what can be said about reproducibility of experiments that take decades and cost billions.

“The best science output you can obtain is as a result of collaboration with lots of different teams.”

Application of reproducibility here is about making the data from the probes available to the scientific community — and the general public — so that the result of analysis can be reproduced. So not experimental replication.

Such data often has a proprietary period (essentially an embargo) before its public release, partly because it’s taken 20 years to obtain and the team that did this should get the first crack at it. But it all has to be made publicly available.

Dorothy Bishop, chair of Academy of Medical Sciences group on replicability

The Royal Society is very much not the first to be talking about replicability — these discussions have been going on for years.

About 50% of studies in Bishop’s field are capable of replication. Numbers are even worse in some fields. Replication of drug trials are particularly important, as false result kill people.

Journals cause awful problems with impact-chasing: e.g. high-impact journals will publish sexy-looking autism studies with tiny samples, which no reputable medical journal would publish.

Statistical illiteracy is very widespread. Authors can give the impression of being statistically aware but in a superficial way.

Too much HARKing going on (Hypothesising After Results Known — searching a dataset for anything that looks statistically significant in the shallow p < 0.05 sense.)

“It’s just assumed that people doing research, know what they are doing. Often that’s just not the case.”

many more criticisms of how the journal system encourages bad research. They’re coming much faster than I can type them. This is a storming talk, I wish the record would be made available.

Employers are also to blame for prioritising expensive research proposals (= large grants) over good ones.

All of this causes non-replicable science.

Floor discussion

Lots of great stuff here that I just can’t capture, sorry. Best follow the tweet stream for the fast-moving stuff.

One highlight: Pat Brown thinks it’s not necessarily a problem if lots of statistically underpowered studies are performed, so long as they’re recognised as such. Dorothy Bishop politely but emphatically disagrees: they waste resources, and produce results that are not merely useless but actively wrong and harmful.

David Colhoun comments from the floor: while physical sciences consider “significant results” to be five sigmas (p < 0.000001), biomed is satisfied with slightly less than two sigmas (p < 0.05) which really should be interpreted only as “worth another look”.

Dorothy Bishop on publishing data, and authors’ reluctance to do so: “It should be accepted as a cultural norm that mistakes in data do happen, rather than shaming people who make data open.”

Coffee break

Nothing to report :-)

Session 2: what can be done to improve reproducibility?

Iain Hrynaszkiewicz, head of data, Nature

In an analysis of retractions of papers in PubMed Central, 2/3 were due to fraud and 20% due to error.

Access to methods and data is a prerequisite for replicability.

Pre-registration, sharing of data, reporting guidelines all help.

“Open access is important, but it’s only part of the solution. Openness is a means to an end.”

Hrynaszkiewicz says text-miners are a small minority of researchers. [That is true now, but I and others are confident this will change rapidly as the legal and technical barriers are removed: it has to, since automated reading is the only real solution to the problem of keeping up with an exponentially growing literature. — Ed.]

Floor discussion