Don't blame Elsevier for exercising the rights you gave them

There has been a lot of talk around the Internet recently about Elsevier taking down PDFs of articles on academia.edu and what it says about scholarly publishing (my favorite analysis is here). As an open access advocate my sympathies in this case are, actually, with Elsevier. Here’s why:

When you publish with Elsevier, you sign an agreement with them called a ‘copyright transfer agreement’. Guess what it does? That’s right: It transfers control of your creative work to them. In many important ways, your work no longer belongs to you. You may be the author, but you are no longer the owner. In saying this I am condensing a lot of complex argumentation about what constitutes ownership, authorship, and so forth. But you get the picture. When Elsevier tells you you can’t post your own work on Academia.edu or anywhere else, they are only exercising the rights that you gave them.

So far, Elsevier and other publishers have quietly tolerated the tremendous traffic of PDFs that happens both in public and private on the Internet. Doing so is in their own best interest — if most people realized the way they had signed away their rights to publishers, the open access movement would double or triple in size overnight. At the moment, exercising these rights seems a bonehead play because it wakes academics from their dogmatic slumbers and gets them pissed off. But is it really a dumb play? Perhaps this is the first step in a gradual process of acclimatization in which publishers slowly send more and more take down notices, getting us used to the idea that we can’t control our own work. Perhaps Elsevier did the numbers and decided it was better to increase sales, even if it comes at the expense of their public reputation. Who knows? Maybe they’ve decided we can’t hate them anymore and just said ‘to hell with it’.

But you can’t blame them for seeing clearly the nature of the game we play with them. When was the last time you watched Jaws and thought to yourself: “It’s not fair! That shark isn’t supposed to eat people!”  The crazy guy with the stitched up face and the chainsaw? What did you think he was doing here in the same creepy mansion with you? And are you really surprised your cell phone doesn’t work in here?

The world of scholarly communication is a deeply screwed up. Most people don’t notice, most of the time. But there are a lot of ways to make it less screwed up. You can publish in fully open access journals. You can publish in green OA journals that allow you to post preprints of your work. You can alter the terms of your author’s agreement (many authors do this successfully) to make your work more accessible. Or if you are on the road to tenure or a job, you can just say “grub first, then ethics” and publish away, knowing that you’ve made a deal with the devil. I understand that sometimes these deals have to be made.

But there’s one thing I don’t think it is fair for us to do: complain about the way the world is because we lived under the impression that it was something else. Especially if we are actively engaged in reproducing it. So if you are pissed off about the Elsevier takedowns, then please join our rebel alliance now — because guess what? Darth Vader actually is out to get you.

Alex Golub is an associate professor of anthropology at the University of Hawai‘i at Mānoa. His book Leviathans at The Gold Mine has been published by Duke University Press. You can contact him at rex@savageminds.org

4 thoughts on “Don't blame Elsevier for exercising the rights you gave them

  1. When the journal “Before Farming” accepted my paper they sent me a copyright agreement that transferred all rights to the publisher. I refused to sign away my rights and informed them that they’d have to forget about publishing my work because I wasn’t about to hand over copyright to them or anyone else. To my surprise, I was offered an alternative agreement that enabled me to keep my rights so long as I agreed to extend certain subsidiary rights to them, e.g., the right to reissue my paper at some future date, etc. Much relieved, I agreed and the paper was published. A few years later I decided that I’d like to make the paper available via my blog. Since I’d retained copyright I was free to do that, but out of respect for the publisher I contacted them first and asked permission, which they granted.

    When preparing for publication in a different journal, I noticed that they too appeared to have a policy whereby all rights were retained by them, at least that’s what it said on their website. But no one ever sent me any agreement to sign, so as far as I’m concerned I still possess sole and exclusive rights to this work. As a result I’ve considered releasing that paper to the public as well, but have hesitated because it’s just not worth antagonizing people any more than I already have (oh by the way, I had a run-in with the editor) and I’d rather not have to ask permission. So for the time being that paper is available only via Jstor, or to people who actually have a subscription to that relatively esoteric publication.

    The moral of my story is: despite appearances, every publication has its own way of doing business and often you can get around these restrictions if you either 1. make the effort; or 2. do nothing. I prefer the latter.

  2. Rex: This is potentially a nice case study in the shift from copyright to intellectual property, and Victor Grauer’s post illustrates some of the misconceptions that accompany that shift. As I’m sure you know, copyright law had its origins in efforts by printers to prevent competition from other printers: the exclusive right to make copies of a written work — to print it — had little to do with authors but a lot to do with the rampant pirating of books. Susan Eilenberg offered a nice summary of this history in her book Strange Power of Speech.

    When printers were the only people with the technology to print/publish, authors needed printers, and printers needed protection of their right to copy from encroachment by other printers/publishers. Our current publishing model retains that allocation of rights, but is now less relevant when we all possess the technology to copy/publish.Publishers have little motivation to change the system or the laws that preserve it, but as we move deeper into an era in which we focus more on “intellectual property” and less on copyright, authors can, do, and should consider alternatives that will ultimately drive changes in the law.

    Regarding Victor’s note, I think most of us have had the experience in recent years of negotiating variations in copyright agreements with academic journals. As you say, journals have little to gain from changing the old system, and it is up to authors to propose alternatives. The really tough nut to crack will be books — they are more costly to print/publish, and represent a larger investment by the publisher. Nonetheless, with the rise of simple print-on-demand options, anyone with a pdf file can print a copy of their book, undercutting the publisher. Here in Washington, the Politics and Prose bookstore has an Espresso Book Machine that can print and bind a book in 5 minutes.

  3. Hello Rex, I agree with you that the ignorance of authors about copyright is an important part of the problem, however, is there not a bit of deception going on getting authors to sign the agreement in the first place. It’s often the last thing authors do before publication, by which time they just want to see their work published.

    Perhaps publishers could be more honest and upfront about what he consequences of signing the agreement are in the first place?

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