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Friday, 2 October 2015

Paywalls and Robin Hoods: the tale of Elsevier and

This Kat sometimes wonders whether every big copyright dispute these days seems to have a major political or philosophical subtext to it -- an example of which can be found below. From guest contributor Emma Perot comes this appraisal of a dispute (reported on TorrentFreak here) between a giant publisher of valuable and useful scholarly material on the one hand, and those who seek access to that same information on the other. Writes Emma:

In a Robin Hood-like manner, has been providing academic articles to researchers in the science and technology community free of charge since 2011. Now Elsevier, one of the largest academic publishers, is seeking to put an end to this open access model. 
Elsevier publishes over 2,000 journals and has an income of more than US$1 billion. Wielding its dominance in the research community, Elsevier charges US$30 to access an article. This is a staggering price when you consider how many articles are needed in order to undertake significant research. In the UK, universities generally pay subscriber fees so that students and staff can access journals. However, this is not the case for everyone. Alexandra Elbakyan is one researcher who could not access Elsevier’s journals because the University of Kazakhstan did not subscribe to the service. In order to progress with her research project, she found forums that facilitated the sharing of articles for free. Elbakyan realised that there were many others like herself who were jumping through hoops for their research. From this necessity sprang the creation of which collects journal articles and makes them available to the public without charge. 
The problem that SciHub is now facing is that the copyright of many of the articles they have published vests in Elsevier.  As stipulated by the terms and conditions of publication, authors assign their exclusive rights (s.106 U.S. Copyright Act 1976) to the publisher. As such, Elsevier is entitled to charge whatever access fee they desire, or to restrict access all together. By reproducing these articles without Elsevier’s permission, Sci-Hub is infringing Elsevier’s copyright and is likely to lose the case against it. Nonetheless, Elbakyan is insistent on fighting for continued open access as she believes that “Everyone should have access to knowledge regardless of their income or affiliation”.  
The author is sympathetic to Elbakyan’s stance and believes that her moral argument is compelling, if not viable under the current capitalist regime. The history of copyright protection reveals an idealistic beginning which better accords with Elbakyan’s philosophy. Copyright protection in the U.S has a foundation in s.8 of the U.S. Constitution which states that
“The Congress shall have power … to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
This clause underpins copyright with utilitarianism by providing an incentive of control to authors. The purpose of this control is to encourage (but not guarantee) the creation of products which will contribute to the growth of society. 
The main criticism of the incentive theory is that people create works even in the absence of intellectual property protection. This seems apparent on the facts before us as authors who publish with Elsevier surrender their copyright protection at the first possible opportunity. Even if the control incentive (there are many other forms of incentive such as reputation building, money, and pure interest) were necessary to encourage research, the utilitarian philosophy does not bode well in a capitalist society where publishers such as Elsevier operate to make a profit rather than to further the altruistic goal of disseminating information. 
Pay wall or ordinary wall?
They're all the same to Hubert
Different approaches can be taken to overcome the barriers presented by legal paywalls. One such approach is to publish in independent, open access journals. The problem with this is that researchers want the benefit of the prestige associated with well-established, peer-reviewed journals. While this may seem like an egotistical issue, researchers spend years trying to develop a reputation of excellence in order to be presented with more opportunities for advancement. Publishing in a well-respected journal ensures quality control standards have been met, thus validating the article. This is particularly so in the science world where research often requires funding to access lab facilities and equipment. 
Alternatively, researchers could boycott publishers such as Elsevier with the aim of reducing access fees. The Cost of Knowledge, which encourages publishing in open access journals, is currently doing this and has attracted over 15,000 signatures to date. Signatories agree not to publish or perform editorial work for Elsevier’s journals. The success of this boycott is dependent on attracting a large enough number of people to damage Elsevier’s profits and reputation, causing them to reduce fees to regain customers. 

While no solution is perfect, the author is open to ideas on how we can facilitate better access to research. The copyright dilemma is easily understood by those with a legal background, but to researchers such as Elbakyan, “…the idea that knowledge can be a private property of some commercial company sounds absolutely weird...” This statement misunderstands the idea/expression dichotomy as Elsevier does not actually own the knowledge but rather the expression of the knowledge in the form of the articles. However, with constrained public access, this dichotomy appears to be legal fiction as those with limited finances will continue to be deprived of knowledge or rely on the less than legal methods of Robin Hood researchers.  


The Pigs said...

sympathetic to the naked breaking of ip law....

Methinks the author might want a different profession.

Anonymous said...

"if not viable under the current capitalist regime" now that sounds ominous.

Anonymous said...

I don't mind subsidising Elbakyan. Happy to work my ass off to pay for food, accomodation, a nice car and holidays and anything else required. Where do I send fill in my credit car details? Or should I just send my credit card?

Anonymous said...

"if not viable under the current capitalist regime" now that sounds ominous.

Evidently a closet Corbynite ... :-)

Stephen Johnson said...

Academic publishing is an interesting example of the power of branding. Once publishers provided the presses and plant necessary to distribute articles. Now given the digitization of the press, all they provide is an organizing function. Public money is used to fund research, peer review of articles submitted to journals is carried out on a volunteer basis by academics for no renumeration and subscriptions to journals are again usually paid for by public money. Publishers are handsomely paid to apply what is essentially a certification mark to chosen articles. However, that branding by "high impact" journals is valuable because papers are the currency of the academic world leading to tenure, grants and promotion. Academics should realize that can still be achieved while not assigning copyright.

Luke Ueda-Sarson said...

"This statement misunderstands the idea/expression dichotomy as Elsevier does not actually own the knowledge but rather the expression of the knowledge in the form of the articles."

This is a naive statement, in the sense it is using "own" in a very formalistic way that is totally divorced from the real-world understanding of the word.

If you publish in an Elsevier journal, you won't be able to use the figures illustrating raw data in your paper without "permission" from Elsevier - never mind that there is (or should be) no copyright in the data itself, because of that very same idea/expression dichotomy. The publisher will and does blandly state it owns copyright to the article itself, and not merely the expressive portions thereof.

They control, whether fairly or not, access to the data ("knowledge") - and in any real sense of the word, the consequently own it.

That they shouldn't own all of it is something entirely different.

Even the quote confuses things by saying "in the form of the articles". Not everything in an article is copyrightable - but the very form of this expression belies the assumption that it is. And this is why people like Alexandra Elbakyan are confused and outraged - their instincts tell them what the law actually says should be the case - the knowledge/data itself isn't owned, but the entire world acts as if it actually is - publishers and copyright lawyers alike.

Mariia Parubets said...

More on copyright versus open access from an economic point of view:

Paywall said...

This seems to be more of a cultural problem in academia. An academic's status is based largely on the journals they publish in, and the reputable journals are owned by publishers like Elsevier. It would be nice if there was an alternative.

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