Show me the data!
Header

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.