Back in February last year, I had the privilege of giving one of the talks in the University of Manchester’s PGCert course “Open Knowledge in Higher Education“. I took the subject “Should science always be open?”

My plan was to give an extended version of a talk I’d given previously at ESOF 2014. But the sessions before mine raised all sorts of issues about copyright, and its effect on scholarly communication and the progress of science, and so I found myself veering off piste. The first eight and a half minutes are as planned; from there, I go off on an extended tangent. Well. See what you think.

The money quote (starting at 12m10s): “What is copyright? It’s a machine for preventing the creation of wealth.”

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Long time readers may remember the stupid contortions I had to go through in order to avoid giving the Geological Society copyright in my 2010 paper about the history of sauropod research, and how the Geol. Soc. nevertheless included a fraudulent claim of copyright ownership in the published version.

The way I left it back in 2010, my wife, Fiona, was the copyright holder. I should have fixed this a while back, but I now note for the record that she has this morning assigned copyright back to me:

From: Fiona Taylor <REDACTED>
To: Mike Taylor <mike@indexdata.com>
Date: 15 August 2016 at 11:03
Subject: Transfer

I, Fiona J. Taylor of Oakleigh Farm House, Crooked End, Ruardean, GL17 9XF, England, hereby transfer to you, Michael P. Taylor of Oakleigh Farm House, Crooked End, Ruardean, GL17 9XF, England, the copyright of your article “Sauropod dinosaur research: a historical review”. This email constitutes a legally binding transfer.

Sorry to post something so boring, after so long a gap (nearly a month!) Hopefully we’ll have some more interesting things to say — and some time to say them — soon!

In my recent preprint on the incompleteness and distortion of sauropod neck specimens, I discuss three well-known sauropod specimens in detail, and show that they are not as well known as we think they are. One of them is the Giraffatitan brancai lectotype MB.R.2181 (more widely known by its older designation HMN SII), the specimen that provides the bulk of the mighty mounted skeleton in Berlin.

Giraffatitan c8 epipophyses

That photo is from this post, which is why it’s disfigured by red arrows pointing at its epipophyses. But the vertebra in question — the eighth cervical of MB.R.2181 — is a very old friend: in fact, it was the subject of the first ever SV-POW! post, back in 2007.

In the reprint, to help make the point that this specimen was found extremely disarticulated, I reproduce Heinrich (1999:figure 16), which is Wolf-Dieter Heinrich’s redrawing of Janensch’s original sketch map of Quarry S, made in 1909 or 1910. Here it is again:

Taylor 2015: Figure 5. Quarry map of Tendaguru Site S, Tanzania, showing incomplete and jumbled skeletons of Giraffatitan brancai specimens MB.R.2180 (the lectotype, formerly HMN SI) and MB.R.2181 (the paralectotype, formerly HMN SII). Anatomical identifications of SII are underlined. Elements of SI could not be identified with certainty. From Heinrich (1999: figure 16), redrawn from an original field sketch by Werner Janensch.

Taylor 2015: Figure 5. Quarry map of Tendaguru Site S, Tanzania, showing incomplete and jumbled skeletons of Giraffatitan brancai specimens MB.R.2180 (the lectotype, formerly HMN SI) and MB.R.2181 (the paralectotype, formerly HMN SII). Anatomical identifications of SII are underlined. Elements of SI could not be identified with certainty. From Heinrich (1999: figure 16), redrawn from an original field sketch by Werner Janensch.

For the preprint, as for this blog-post (and indeed the previous one), I just went right ahead and included it. But the formal version of the paper (assuming it passes peer-review) will by very explicitly under a CC By licence, so the right thing to do is get formal permission to include it under those terms. So I’ve been trying to get that permission.

What a stupid, stupid waste of time.

Heinrich’s paper appeared in the somewhat cumbersomely titled Mitteilungen aus dem Museum fur Naturkunde in Berlin, Geowissenschaftliche Reihe, published as a subscription journal by Wiley. Happily, that journal is now open access, published by Pensoft as The Fossil Record. So I wrote to the Fossil Record editors to request permission. They wrote back, saying:

We are not the right persons for your question. The Wiley Company holds the copyright and should therefore be asked. Unfortunately, I do not know who is the correct person.

I didn’t know who to ask, either, so I tweeted a question, and copyright guru Charles Oppenheim suggested that I email permissions@wiley.com. I did, only to get the following automated reply:

Dear Customer,

Thank you for your enquiry.

We are currently experiencing a large volume of email traffic and will deal with your request within the next 15 working days.

We are pleased to advise that permission for the majority of our journal content, and for an increasing number of book publications, may be cleared more quickly by using the RightsLink service via Wiley’s websites http://onlinelibrary.wiley.com and www.wiley.com.

Within the next fifteen working days? That is, in the next three weeks? How can it possibly take that long? Are they engraving their response on a corundum block?

So, OK, let’s follow the automated suggestion and try RightsLink. I went to the Wiley Online Library, and searched for journals whose names contain “naturkunde”. Only one comes up, and it’s not the right one. So Wiley doesn’t admit the existence of the journal.

Despite this, Google finds the article easily enough with a simple title search. From the article’s page, I can just click on the “Request Permissions”  link on the right, and …

rightslink-fail

Well, there’s lots to enjoy here, isn’t there? First, and most important, it doesn’t actually work: “Permission to reproduce this content cannot be granted via the RightsLink service.” Then there’s that cute little registered-trademark symbol “®” on the name RightsLink, because it’s important to remind me not to accidentally set up my own rights-management service with the same name. In the same vein, there’s the “Copyright © 2015 Copyright Clearance Center, Inc. All Rights Reserved” notice at the bottom — copyright not on the content that I want to reuse, but on the RightsLink popup itself. (Which I guess means I am in violation for including the screenshot above.) Oh, and there’s the misrendering of “Museum für Naturkunde” as “Museum für Naturkunde”.

All of this gets me precisely nowhere. As far as I can tell, my only recourse now is to wait three weeks for Wiley to get in touch with me, and hope that they turn out to be in favour of science.

sadness_____by_aoao2-d430zrm

It’s Sunday afternoon. I could be watching Ireland play France in the Rugby World Cup. I could be out at Staverton, seeing (and hearing) the world’s last flying Avro Vulcan overfly Gloucester Airport for the last time. I could be watching Return of the Jedi with the boys, in preparation for the forthcoming Episode VII. Instead, here I am, wrestling with copyright.

How absolutely pointless. What a terrible waste of my life.

Is this what we want researchers to be spending their time on?

Promoting the Progress of Science and useful Arts, indeed.

Update (13 October 2015): a happy outcome (this time)

I was delighted, on logging in this morning, to find I had email from RIGHTS-and-LICENCES@wiley-vch.de with the subject “Permission to reproduce Heinrich (1999:fig. 16) under CC By licence” — a full thirteen working days earlier than expected. They were apologetic and helpful. Here is key part of what they said:

We are of course happy to handle your request directly from our office – please find the requested permission here:
We hereby grant permission for the requested use expected that due credit is given to the original source.
If material appears within our work with credit to another source, authorisation from that source must be obtained.
Credit must include the following components:
– Journals: Author(s) Name(s): Title of the Article. Name of the Journal. Publication  year. Volume. Page(s). Copyright Wiley-VCH Verlag GmbH & Co. KGaA. Reproduced with permission.

So this is excellent. I would of course have included all those elements in the attribution anyway, with the exception that it might not have occurred to me to state who the copyright holder is. But there is no reason to object to that.

So, two cheers for Wiley on this occasion. I had to waste some time, but at least none of it was due to deliberate obstructiveness, and most importantly they are happy for their figure to be reproduced under CC By.

References

  • Heinrich, Wolf-Dieter. 1999. The taphonomy of dinosaurs from the Upper Jurassic of Tendaguru, Tanzania (East Africa), based on field sketches of the German Tendaguru expedition (1909-1913). Mitteilungen aus dem Museum fur Naturkunde in Berlin, Geowissenschaftliche Reihe 2:25-61.

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.

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.