As explained in careful detail over at Stupid Patent of the Month, Elsevier has applied for, and been granted, a patent for online peer-review. The special sauce that persuaded the US Patent Office that this is a new invention is cascading peer review — an idea so obvious and so well-established that even The Scholarly Kitchen was writing about it as a commonplace in 2010.

Apparently this is from the actual patent. I can't verify that at the moment, as the site hosting it seems to be down.

Apparently this is from the actual patent. I can’t verify that at the moment, as the site hosting it seems to be down.

Well. What can this mean?

A cynic might think that this is the first step an untrustworthy company would take preparatory to filing a lot of time-wasting and resource-sapping nuisance lawsuits on its smaller, faster-moving competitors. They certainly have previous in the courts: remember that they have brought legal action their own customers as well as threatening Academia.edu and of course trying to take Sci-Hub down.

Elsevier representatives are talking this down: Tom Reller has tweeted “There is no need for concern regarding the patent. It’s simply meant to protect our own proprietary waterfall system from being copied” — which would be fine, had their proprietary waterfall system not been itself copied from the ample prior art. Similarly, Alicia Wise has said on a public mailing list “People appear to be suggesting that we patented online peer review in an attempt to own it.  No, we just patented our own novel systems.” Well. Let’s hope.

But Cathy Wojewodzki, on the same list, asked the key question:

I guess our real question is Why did you patent this? What is it you hope to market or control?

We await a meaningful answer.

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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.