Elsevier gets sneaky

in DigiLib BLog
June 19th, 2009

The large and influential academic publisher Elsevier seems to have quietly changed its publication agreement. From the sample agreement [PDF link]:

Assignment of publishing rights
I hereby assign to <Copyright owner> the copyright in the manuscript identified above (government authors not electing to transfer agree to assign a non-exclusive licence) and any supplemental tables, illustrations or other information submitted therewith that are intended for publication as part of or as a supplement to the manuscript (the “Article”) in all forms and media (whether now known or hereafter developed), throughout the world, in all languages, for the full term of copyright, effective when and if the article is accepted for publication. This transfer includes the right to provide the Article in electronic and online forms and systems. No revisions, additional terms or addenda to this Agreement can be accepted without our express written consent. Authors at institutions that place restrictions on copyright assignments, including those that do so due to policies about local institutional repositories, are encouraged to obtain a waiver from those institutions so that the author can accept our publishing agreement. (Emphasis mine.)

So, first they imply that institutions with institutional repositories restrict their faculty’s publishing opportunities by placing “restrictions on copyright assignments.” Not true: most institutions aim to educate their faculty about copyright and make sure that their researchers don’t sign away all rights in perpetuity without knowing exactly what they’re doing. It’s understandable that Elsevier wouldn’t like this, as they want exclusive copyright on work they didn’t perform (though, to be fair, are publishing).

Then Elsevier encourages authors to opt out of an enterprise that is proving to be a significant boon to academics (first and foremost providing them with visibility), implying that this is required for the authors to accept Elsevier’s apparently immutable publishing agreement. No contract is immutable before it is signed, but the language here does strongly suggest this, counting on most people just going along with it because they are unaware, or because they want to publish and don’t have time to pursue this with Elsevier.

It’s true that the very next paragraph, and its continuation later in the document, have different implications:

Retention of Rights for Scholarly Purposes (see Definitions below)
I understand that I retain or am hereby granted (without the need to obtain further permission) rights to use certain versions of the Article for certain scholarly purposes, as described and defined below (“Retained Rights”), and that no rights in patents, trademarks or other intellectual property rights are transferred to the journal.

The Retained Rights include the right to use the Pre-print or Accepted Authors Manuscript for Personal Use, Internal Institutional Use and for Scholarly Posting; and the Published Journal Article for Personal Use and Internal Institutional Use. […]

[definition of scholarly posting] Voluntary posting by an author on open Web sites operated by the author or the author’s institution for scholarly purposes, or (in connection with Pre-prints) pre-print servers, provided there is no Commercial Purpose involved. Deposit in or posting to Special Repositories (such as PubMed Central) is permitted only under specific agreements between Elsevier and the repository and only consistent with Elsevier’s policies concerning such repositories. If the author wishes to refer to the journal in connection with such posting, the Appropriate Bibliographic Citation should be used.

Further confusing: a scholar may post pre-prints to the websites that fit the italicized definition above, which would seem to include institutional repositories. Except Elsevier mentions repositories twice, and both in a permission-denied context: the second one is the Special Repositories such as PubMed.

Seems like language designed to mislead and bully, to me. Elsevier, would you please clarify?

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