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April Clyburne-Sherin asked an interesting question on the OpenCon Discussion List recently:

I am an author on a manuscript that my lab wants to publish in a subscription journal that normally retains the copyright. The manuscript is a desirable one so they are “willing” (haha) to provide it “open access” (that was my stipulation to my lab when they started speaking with the publisher). My lab is happy with this, but I do not trust the publisher and want to be able to negotiate a publishing agreement that guarantees:
  • We retain the copyright;
  • The article will be open access forever and no version will be behind a paywall at their journal ever;
  • That there are no sign-ins, registrations, DRM viewing issues, or other ‘free” obstacles to viewing the article.

Comment: Quite rightly, April does not trust the publisher to make the published work fully open access in perpetuity, and wants to do more as an author, with the publishing agreement (a formal contract) to ensure that the publisher will actually provide the exact services she wants.

Recent events this year, whereby Elsevier, Wiley and Springer have all been caught red-handed selling access to hybrid open access articles justifies this lack of trust. It’s a sad state of affairs that authors such as April & myself no longer trust some service providers to actually provide the services we pay them for (e.g. Open Access).

Some helpful links & pointers have been provided on the discussion list, and this may be a concern many other scholarly authors have so it’s valuable to collate, discuss and publicise possible solutions to the thorny problem of publishing agreements with legacy publishers. I certainly don’t pretend to have all the answers here and I think organisations like SPARC might want to act on this one.

Lorraine Chuen links to the Canadian Association of Research Libraries (CARL) ‘Resources for Authors’ page which amongst other things discusses the Canadian SPARC Author Addendum. I knew about the US SPARC Author Addendum, but I never knew there was a Canadian version too!

Matt Menzenski links to the University of Kansas Authors & Copyright page. I particularly like An Introduction to Publication Agreements for Authors (Armstrong, 2009) that they link to at the very top – it’s really useful information.

My Suggested Solutions

For my part, I chipped-in with four different ways that in their own way either partially or wholly fulfil some or all of the criteria April is looking for:

1.) Wait for them to send you their proposed publishing agreement & change the terms to ones you find agreeable

If they send you a standard CTA (Copyright Transfer Agreement) form as PDF, you can modify the wording of that PDF to terms you prefer and send it back to them and they probably won’t even notice as long as it’s signed & doesn’t look too different. It’s cheeky, but I got away with it for a book chapter once. Be careful to remove / replace the term ‘work for hire’ – it may look like an innocuous statement but apparently this is fairly key in legal terms – I neglected to remove that from my book chapter agreement.

 

2.) Transferring away your copyright away to another person
Not as easy perhaps for multi-author papers but Mike Taylor has a good (successful-ish) anecdote about transferring his copyright to his spouse, thereby preventing the Geological Society from taking the copyright of the work.

 

3.) Claim that one of the authors is a US federal government employee
Use Section 105 of the US Copyright Act by pretending that at least one of the authors is an employee of the US Government. Works of the U.S. federal government cannot be copyrighted by their authors in the US – they must be public domain, which is in practice achieved by applying the Creative Commons Zero waiver to the paper. The CTA form may contain a check box asking about this. If not, just email them about it. Michael Eisen famously, successfully liberated a NASA space research paper from behind a paywall at Science (AAAS), using Section 105 as justification.
Will publishers really bother fact-checking your assertion about the employment of one of the authors? I don’t think so. It could land them in big trouble if they dare disregard the US Copyright Act.

 

4.) Simply do not sign, or do not return the unfavourable publishing agreement
Another risky approach is simply not to sign or not to return the CTA the publisher sends you after acceptance (with the obvious risk that this could delay publication). I think this is perhaps the most promising approach, there is strong evidence that many academics currently employ this practice. When you think about it: publishers actually need our papers or they’ll go bust. They need a constant stream of content to justify their existence. If you don’t sign-off on their stipulated terms and conditions, after acceptance, they do have real pressures to get on and publish the paper anyway, especially with the increased focus on optimising submission to publication times these days.

 

I’ll let Reinhard Diestel (mathematician, University of Hamburg) have the last word on this post, it’s a solution I’m keenly interested in trying myself:
I stopped signing away my copyright on journal papers in the late 1990s. Interestingly, almost all publishers reacted either positively or not at all when I did not return the copyright form signed as requested: in all cases did they print the paper in question, usually without additional delay, and sometimes with unexpected understanding and support. (Yes, there have been one or two cases where things were a little more difficult at first, but these too were resolved amicably in the end.)” — http://www.math.uni-hamburg.de/home/diestel/copyright.html

 

Roughly ten days after I first blogged about this (see: Springer caught red-handed selling access to an Open Access article), Springer have now made a curious public statement acknowledging this debacle:

Statement on Annals of Forest Science article


Berlin, 6 May 2015

A number of tweets posted by Prof. Luis Apiolaza on 27 April, and by others active on social media, suggest that Springer is charging for access to open access articles published in Annals of Forest Science. After looking into this issue, there is indeed an issue with the status of the article, but this has to do with the background of the journal itself.

Annals of Forest Science is a journal owned by INRA (Institut National de la Recherche Agronomique). In 2009, when the article in question first appeared, the journal was being published by another company that allowed readers to read the articles without paying a fee (“free access”). When Springer started working with INRA in 2011 we agreed to add the 2007-2010 archives to SpringerLink, Springer’s online platform, in order to ensure a smooth transition and to give a wider distribution to the most recent articles. Since the copyright was not assigned to the author, and since there is no mention of the licensing used, we incorrectly assumed that the article was not open access.

It is clear that this article was intended to be open access, and it will be made so on SpringerLink as quickly as possible. Anyone that has purchased the article will, of course, be reimbursed.

Please note that we support Green Open Access and we feed all articles from INRA journals to the HAL repository after the 12-month embargo, making the articles freely downloadable there (this is clearly written on the journal’s webpage, with a link to the HAL platform). The article in question can also be found there for free (since 2011).

This has been an oversight, and we apologize for not being more thorough and vigilant.

Contact

Ruth Francis | Springer | Corporate Communications
tel +44 203192 2732 | ruth.francis@springer.com

—————END———————-

I am pleased that Springer are committing to reimbursing all (reader) purchasers of wrongly-paywalled articles, and I shall check my bank balance regularly in the coming weeks to see if they honour this promise.

I am also pleased that Springer see fit to formally apologize for their carelessness of publishing. I note that AFAIK neither Wiley nor Elsevier have apologised for similar incidents this year.

But I’m rather bemused by this wording they have chosen: “It is clear that this article was intended to be open access, and it will be made so on SpringerLink as quickly as possible”

Indeed it seems they chose this wording carefully, because as far as I can tell with my browser, Luis’s open access article is still on sale (see screenshot below).

Update: As of 2015-07-05 13:20 (BST) the article is now no longer paywalled. At the time of writing, as can be seen below it was clearly paywalled.

screenshot

 

Springer SBM as an entity makes nearly a billion euros per year in turnover. Despite the considerable size, wealth and ‘experience’ in publishing, Springer can’t seem to unpaywall Luis’s article. Astonishing.

Last Friday, I genuinely thought Elsevier had illegally sold me an article that should have been open access. This post is to update you all on what we’ve found out since:

The Scale of the Problem

No one really knows how many articles are wrongly paywalled at all of Elsevier’s various different sales websites. So far, Alicia Wise (Elsevier’s Director of ‘Universal Access’) has admitted that 27 articles were wrongly paywalled in this latest incident and that “a handful” of these were sold to readers for $31.50 per article (source).

This wrong paywalling of paid-for ‘open access’ content also happened in 2014. I have a feeling it will happen in 2016 too…

Do we have the time and resources to keep checking all articles, at all providers of ‘hybrid OA’, to see if they are wrongly or illegally on sale?

Can we trust publishers of ‘hybrid OA’ to keep those paid-for articles outside the paywall, in perpetuity?

A lot of credit for unveiling this latest incident should be given to Marlène Delhaye, whom to my knowledge was the first person to uncover this latest round of problems at Elsevier.

Duration of Imprisonment

If one assumes that these 27 falsely paywalled articles were all from the transfer of the journal Clinical Microbiology and Infection from Wiley to Elsevier, which happened on January 1st, 2015, then we can perhaps assume that these articles were wrongly paywalled for a duration of 2 months and 9 days.

How many readers did these articles lose in that duration because the prospective readers could not get cost-free access to the full text from Elsevier’s websites? Most publisher websites track failed access attempts. For example JSTOR memorably admitted it turned away 150 million people attempting to read paywalled articles in one year.

I have been promised reimbursement for my purchases of articles that should never have been on sale in the first place, but what of the authors & funders of these articles? What compensation do they get? Their articles weren’t freely available to read for over 2 months – I’d be hopping mad if I was an author of one of those works. I think an appropriate calculation of financial compensation would be the price the article was on sale for, multiplied by the number of days it was wrongly behind a paywall.

Thus for this latest incident involving 27 articles, wrongly paywalled for 67 days, at a sale price of $31.50, I estimate the total bill for compensation owed to all the authors is: $56,983.50.  Considering the Elsevier STM publishing division had an adjusted operating profit in 2013 of £826 million, I think they can spare that loose change amount.

Apparently it was not ‘illegal’

Various people, Alicia Wise included, have been telling me that selling access to hybrid OA in this instance was NOT illegal. After a lot of discussion, I think I believe them.

Despite the article being clearly intended to be freely available to readers upon publication by the authors, all parties agree they paid Wiley to make the article freely available, not behind a paywall.

Despite the Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 license clearly marked on the article at the Wiley site.

How?

Well, author-publisher contract trickery is the answer, I believe.

Conventional open access publishers simply confirm, via an informed consent process, that the author knows and wants their work to be published typically under the Creative Commons Attribution License (CC-BY). If it gets through the editorial & review process, it is published online solely under the terms of the CC-BY license, and this is clearly marked on the paper. Copyright is fully retained by the authors over their work at all times. It’s a clear one-step process. The publisher AND readers are both bound by the terms of the chosen CC-license.

But Elsevier, Wiley and other merchants of ‘hybrid OA’ do things differently. Typically, they grant themselves carte blanche rights for commercial usage in an author-publisher contract and then afterwards, they publish online the article under a Creative Commons (or other) license. In this case only the readers are bound by the terms of the ‘end-user’ licence – the publisher can to some extent do what they want with impunity.

Needless to say, I think this incident has unveiled a significant flaw / legal loophole in the way that legacy publishers offer ‘hybrid OA’. Authors under these ‘hybrid OA’ systems appear to lose the right to sue their own publisher for wrongful commercial usage of their work.

At the very least I think publishers should print the terms and conditions of the author-publisher contract within each publication itself, so that readers like myself are informed of their ‘special rights’, over-and-above those indicated by the Creative Commons license chosen.

No apologies, no formal statements …so far

I’ve seen a few blog comments here and there from Alicia Wise which has been helpful. It is noted that she has even “thanked” me for raising this issue. I have also been promised a refund for my article purchases.

But thanks is not what I wanted. I didn’t intend to do Elsevier’s system-checking work for them. I want a public apology for this incident, that includes the word ‘sorry':

  1. To myself and others who were wrongly charged for access to ‘open access’ articles
  2. To the authors & research funders of those 27 articles that were paid-for to be made available to readers for free, ‘open access’.
  3. To all the prospective readers, who didn’t get to read those 27 articles for over 2 months because they were behind a paywall.

 

I accept that these articles were ‘mistakenly’ paywalled, but even when innocent mistakes are made, it is still polite to formally apologise for making them.

For my part, I’m happy to apologise for alleging that these article sales were ‘illegal‘ – it was a logical, justified statement to make at the time, but with hindsight it might not be factually correct. Sorry Elsevier, what you did was not quite ‘illegal’ it was just wrong.

Now I’ve said my public apology for my innocent mistake, perhaps Elsevier could publicly make their apology too?

RIPhybridOA

  • you weren’t much loved in your short existence
  • you weren’t much use to readers or text-miners because we often couldn’t find where you were – hiding amongst shadows.
  • you were significantly more expensive than your ‘full’ open access cousins

 

In March, 2015 ‘hybrid OA’ died after a short-life of neglect. Elsevier put the final nail in the coffin, but it wasn’t just they who were responsible, other publishers were plainly guilty of hybrid OA neglect too.

Publishers gave birth to the cash-cow that was hybrid OA not long ago. The profits were immense: $5000 for a single article in some greedy cases. Yet after each ‘hybrid OA’ article was born, and the profit raked in, the hybrid OA articles were completely neglected post-publication. Much like their shuttered, not-allowed-to-play-outside-the-paywall brothers & sister articles. They were forgotten about, even though their authors had stumped-up significant funds upfront to ensure their freedom forever.

Hybrid OA - a cash-cow

Hybrid OA was a wonderfully profitable system for the publisher/carers. It enabled bountiful double-dipping – additional revenue for providing exactly the same content. Laughably, the publisher/carers claimed  that it was “not happening at all“, but anyone with a brain knew better.

But too much neglect of the hybrids over the years led to many high-profile instances of triple-dipping: subscription revenue, APC fees, AND $31.50 (+ tax) per article reader charges (for content that had already been paid to be made free for readers, forever).

A variety of rightly concerned funders started a trend banning authors from sending their articles to hybrid OA profiteer-merchants, for their own good. Only full OA venues could be trusted to actually do the job and the keep the articles outside paywalls.

In short, legacy publishers themselves killed hybrid OA through their own carelessness. Authors, librarians, research funders and readers simply didn’t trust publishers to do hybrid OA properly, and had amassed plenty of evidence of their ineptitude. They tried to sweep the problem of a flawed and difficult system under the carpet as just ‘bumps in the road‘ to open access but actually hybrid OA was just a wrong turn all along.

Hybrid OA Is The Wrong Way

Hybrid OA Is The Wrong Way

Elsevier seem to have responded to my criticism yesterday and have stopped selling the article “HIV infection en route to endogenization: two cases” from their ScienceDirect website. Take what you will from that change, but I infer that they have realised that they are in the wrong.

Actually, they are still selling it from the ScienceDirect website too. It only looked freely available to me because I myself had paid for access to it & I guess a cookie remembered me. It’s still on sale at ScienceDirect.com as well as clinicalmicrobiologyandinfection.com

Further update: As of 2015-03-09 17.13 PM the articles were finally freely available ‘unchained'(?) from behind Elsevier’s paywalls.

 

So I was very surprised to find when I woke up this morning (2015-03-07), that this article, and many other CC-licensed articles in that journal are still being sold via other Elsevier-owned websites e.g. the one below: http://www.clinicalmicrobiologyandinfection.com/article/S1198-743X(15)60028-3/abstract

2015-03-07-091854_1332x1045_scrot

I couldn’t believe my eyes, so just to make sure they really were still illegally selling this article that shouldn’t be sold, I made another test purchase:

2015-03-07-092852_1332x1045_scrot

I heard back from Didier (the corresponding author) yesterday. He does not know why Elsevier are selling his article, nor did he give them permission to.

Elsevier (RELX Group) have been doing this for many years now: selling open access articles that authors/funders have paid-for to make freely available to everyone. Peter Murray-Rust, Mike Taylor and others have written about this extensively.

It is little wonder then that Elsevier is the most boycotted academic publishing company in the world: nearly 15,000 researchers have publicly declared they want nothing to do with this company.

I am yet to receive a refund or an apology. Alicia Wise did tweet me this:

“.@emckiernan13 .@TomReller .@rmounce the journal is in transition from Wiley to Elsevier; will check on transition status” https://twitter.com/wisealic/status/573948162794196992 but it is of little help…

Will I get my money back? I hope so…

[Update 2015-03-13: I have blogged further about this here and provided a recap here. This post has been viewed over 10,000 times. Clearly some people want to sweep this under the carpet and pretend this is just ‘a storm in a teacup’ but it did happen and people do care about this. Thanks to everyone who spread the word.]

Today, Elsevier (RELX Group) illegally sold me a Creative Commons Attribution-NonCommercial-NoDerivatives licensed article:

Colson, P. et al. HIV infection en route to endogenization: two cases. Clin Microbiol Infect 20, 1280-1288 (2014).

I’m really not happy about it. I don’t think the research funders will be happy about it either. Especially not the authors (who are the copyright holders here).

Below is a screenshot of how the content was illegally on offer for sale, for $31.50 + tax.

2015-03-06-175622_1286x907_scrot

To investigate if it really was on sale. I decided to make a test purchase. Just to be absolutely sure. Why not? The abstract looked interesting. The abstract was all I was allowed to read. I wanted to know more.

Below is the email receipt I received confirming my purchase of the content. I have crudely redacted my postal address but it’s otherwise unaltered:

receipt

So what’s the problem here?

The article was originally published online by Wiley. As clearly indicated in the document, the copyright holders are the authors. The work was licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International license (CC BY-NC-ND 4.0).

The terms of this widely used license clearly state: “You may not use the material for commercial purposes.

Wiley respect this license. They make this content freely available on their website here. The authors, or their research funder or institution probably paid Wiley money to make sure that the article could be made freely available to the world.

But tonight, Elsevier were selling it to me and all the world via their ScienceDirect platform.
This is clearly an illegal copyright infringement.

I have tweeted Elsevier employees @wisealic & @TomReller to see how I can get a refund for my purchase at the very least. This article should never have been on sale.

I have also contacted the corresponding author (Didier) to see what his thoughts are.
I do hope the authors will take legal action against Elsevier for their criminal misdeeds here.

Last week, on Monday 19th January, I co-organised the first ever Open Research London event at Imperial College London, with the help of local organisers; Jon Tennant & Torsten Reimer.

OpenResearch

We invited two speakers for our first meeting:

They both gave excellent talks which were recorded on Imperial’s ‘Panopto’ recording system. We hope to make these available for viewing/download as soon as possible. The recordings are now publicly available! CB’s talk is available to stream here & download here, JMcA’s talk is available to stream here & download here.

 

We had lots of free swag to give away to attendees, including PLOS t-shirts, notebooks, USB sticks and ‘How Open Is It?‘ guides, as well as SPARC and OA Button stickers & badges – they seemed to go down well. I kept some swag back for the next event too, so if you didn’t get what you wanted this time, there will be more next time!

The speakers were kind enough to publicly post their slide-decks before their talks so you can alternatively catch-up with their content on Slideshare.

Chris Banks’ slides are embedded below:

Joe McArthur’s slides are below here:

I’ll refrain from naming names for the sake of privacy but what I most enjoyed about the event was the diversity of attendees. We had people who were ‘curious’ about Open Access and wanted to know more. We had a new PhD student, we had midway PhD students, librarians, open access publishers, and more… I believe one attendee might even have travelled back to Brighton after the event! In terms of affiliations, we had attendees from Jisc, The Natural History Museum London, Imperial College (two different campuses represented!), UCL, The National Institute for Medical Research (MRC), and AllTrials.

I was also mightily impressed that nearly all the attendees, including both speakers happily joined us in the student union (Eastside) afterwards for discussions & networking over drinks – a real sense of community here I think.

Can we do better next time? Sure we can, we must! Attendance was lower than I had hoped for but several people kindly messaged me afterwards to let me know they wanted to be there but couldn’t. I’ve no doubt that with warmer weather we’ll be able to double our attendance.

 

The next ORL meetup will be in mid or late March at UCL, further details TBC. 

Keep up-to-date with ORL via Twitter @OpenResLDN or our OKFN community group page: http://science.okfn.org/london-open-research/

 

I’m actively in the process of trying to grow the organising/steering committee for ORL. At the moment it’s just myself, Liz I-S and Jon Tennant. If you’re passionate about open research, open access, open data, reproducible research, citizen science, diversity in research, open peer-review etc… then get in contact with me: ross.mounce@gmail.com

I would love to have an OC that more broadly represents the variety of the open research community in London :)

 

Until next time…

 

Ross

[Update: I’ve submitted this idea as a FORCE11 £1K Challenge research proposal 2015-01-13. I may be unemployed from April 2015 onwards (unsolicited job offers welcome!), so I certainly might find myself with plenty of time on my hands to properly get this done…!]

Inspired by something I heard Stephen Curry say recently, and with a little bit of help from Jo McIntyre I’ve started a project to compare EuropePMC author manuscripts with their publisher-made (mangled?) ‘version of record’ twins.

How different are author manuscripts from the publisher version of record? Or put it another way, what value do publishers add to each manuscript? With the aggregation & linkage provided by EuropePMC – an excellent service – we can rigorously test this.

 

In this blog post I’ll go through one paper I chose at random from EuropePMC:

Sinha, N., Manohar, S., and Husain, M. 2013. Impulsivity and apathy in parkinson’s disease. J Neuropsychol 7:255-283.  doi: 10.1111/jnp.12013 (publisher version) PMCID: PMC3836240 (EuropePMC version)

Method

A quick & dirty analysis with a simple tool that’s easy to use & available to everyone:

pdftotext -layout     (you’re welcome to suggest a better method by the way, I like hacking PDFs)

(P) = Publisher-version , (A) = Author-version

Manual Post-processing – remove the header and footer crud from each e.g. “262
Nihal Sinha et al.” (P) and “J Neuropsychol. Author manuscript; available in PMC 2013 November 21.” (A)

Automatic Post-processing – I’m not interested in numbers or punctuation or words of 3-letters or less so I applied this bash-one-liner:

strings $inputfile | tr ‘[A-Z]’ ‘[a-z]’ | sed ‘s/[[:punct:]]/ /g’ | sed ‘s/[[:digit:]]/ /g’ |  sed s/’ ‘/\\n/g | awk ‘length > 3′ | sort | uniq -c | sort -nr > $outputfile

Then I just manually diff’d the resulting word lists – there’s so little difference it’s easy for this particular pair.

 

Results

The correspondence line changed slightly from this in the author version:

Correspondence should be addressed to Nuffield Department of Clinical Neurosciences and Department Experimental Psychology, Oxford University, Oxford OX3 9DU, UK (masud.husain@ndcn.ox.ac.uk). . (A)

To this in the publisher version (I’ve added bold-face to highlight the changes):

Correspondence should be addressed to Masud Husain, Nuffield Department of Clinical Neurosciences and Department Experimental Psychology, Oxford University, Oxford OX3 9DU, UK (e-mail: masud.husain@ndcn.ox.ac.uk). (P)

 

Reference styling has been changed. Why I don’t know, seems a completely pointless change. Either style seems perfectly functional to me tbh:

Drijgers RL, Dujardin K, Reijnders JSAM, Defebvre L, Leentjens AFG. Validation of diagnostic criteria for apathy in Parkinson’s disease. Parkinsonism & Related Disorders. 2010; 16:656–660. doi:10.1016/j.parkreldis.2010.08.015. [PubMed: 20864380] (A)

to this in the publisher version:

Drijgers, R. L., Dujardin, K., Reijnders, J. S. A. M., Defebvre, L., & Leentjens, A. F. G. (2010). Validation of diagnostic criteria for apathy in Parkinson’s disease. Parkinsonism & Related Disorders, 16, 656–660. doi:10.1016/j.parkreldis.2010.08.015 (P)

In the publisher-version only (P) “Continued” has been added below some tables to acknowledge that they overflow on the next page. Arguably the publisher has made the tables worse as they’ve put them sideways (landscape) so they now overflow onto other pages. In the author-version (A) they are portrait-orientated and so hence each fit on one page entirely.

 

Finally, and most intriguingly, some of the figure-text comes out only in the publisher-version (P). In the author-version (A) the figure text is entirely image pixels, not copyable text. Yet the publisher version has introduced some clearly imperfect figure text. Look closely and you’ll see in some places e.g. “Dyskinetic state” of figure 2 c) in (P), the ‘ti’ has been ligatured and is copied out as a theta symbol:

DyskineƟc state

 

Discussion

 

I don’t know about you, but for this particular article, it doesn’t seem like the publisher has really done all that much aside from add their own header & footer material, some copyright stamps & their journal logo – oh, and ‘organizing peer-review’. How much do we pay academic publishers for these services? Billions? Is it worth it?

I plan to sample at least 100 ‘twinned’ manuscript-copies and see what the average difference is between author-manuscripts and publisher-versions. If the above is typical of most then this will be really bad news for the legacy academic journal publishers… Watch this space!

 

Thoughts or comments as to how to improve the method, or relevant papers to read on this subject are welcome. Collaboration welcome too – this is an activity that scales well between collaborators.