It’s no secret that I’m not the biggest fan of Elsevier, but this recent round of behavior is abhorrent.
Originally, Ross Mounce shared the story that Elsevier had sold him an article that was originally published Open Access with Wiley and licensed CC-BY-NC-ND. To quote Ross:
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.
This article was licensed Open Access through a hybrid-style OA agreement, where the author publishes in a subscription journal (in this case, Clinical Microbiology and Infection) and pays a fee to make it Open Access. The author chose to apply a CC-BY-NC-ND — which has the non-commercial clause — to the article.
However, as pointed out in an article at Times Higher Education, a clever clause in the author agreement permits resale of this article:
“Use of Wiley Open Access articles for commercial, promotional, or marketing purposes requires further explicit permission from Wiley and will be subject to a fee”
This made think back to my blog post about the labyrinthine licensing language at the Elsevier Open Access journal Ampersand. I went back to check the license agreement, and guess what appears in the “Rights Granted to Elsevier” section?
The exclusive right to publish and distribute an article, and to grant rights to others, including for commercial purposes. (Source.)
Sounds familiar – it’s a very similar clause to what appears in Wiley’s author agreement that makes this behavior legal. It appears that the CC license that you are paying this Open Access journal to apply to your article is only valid for the author and the reader. The publisher has exempted themselves, allowing themselves to make money off of your article — above and beyond what they charge you for making the article open in the first place (whether by a hybrid OA fee or an Article Processing Fee). As Barbara Fister said in her article, “It may be legal, but it isn’t right.”
Ross Mounce has called this whole fiasco the end of Hybrid OA. I think it’s just the beginning, because clearly even the Open Access journals published by Elsevier are a hybrid in some sense of the word. It’s not just the Hybrid OA articles that can receive this treatment, but rather any article published with Elsevier, whether subscription, OA, or hybrid.
These major publishers may be trying to put on a good face for Open Access, but I simply cannot believe that this is a good-faith effort, not with this kind of thing happening over and over again.