August 28, 2018 by joshbolick
Last year I presented a poster at the Kraemer Copyright Conference in Colorado Springs, titled “Exploiting Elsevier’s Creative Commons Licensing Requirement to Subvert Embargo” (available CC-BY in my IR). In the following weeks I blogged about it and the reactions from a couple of Elsevier folks. Since that time I’ve discussed the idea with many colleagues and worked with the great folks at the Journal of Copyright in Education and Librarianship on an article building on the poster. I’m so pleased and excited to say that the article was published early in August, under the slightly different title “Leveraging Elsevier’s Creative Commons License Requirement to Subvert Embargo“, which is also open and CC-BY per JCEL‘s progressive publishing and sharing policies. In short, I suggest that a careful application of the sharing policy as presently written creates an avenue for embargo-free immediate open sharing of the author’s accepted manuscript via institutional repository. This is possible because the policy permits immediate sharing on the author’s “personal website or blog” with a Creative Commons Attribution NonCommercial No Derivatives (CC-BY-NC-ND) license. The license then is a mechanism for eliminating any embargo (up to 48 months) for open sharing in the author’s institutional repository, sharing policy notwithstanding…or sharing policy withstanding, as it were.
Interest has been high, and reactions generally positive. There are lots of things I might end up blogging about if I have the time (oh, my work/life balance), but right now I want to share my full answers to some questions from a reporter, Ben Upton, of Research Professional, a publication I was previously not familiar with. The resulting article, “Loophole found in Elsevier repository embargo” is unfortunately behind a paywall (in fact, not even presently discoverable via a Google search for that exact title phrase), but it goes sort of like this: description of the conflict in the sharing policy as outlined above, context of existing and ongoing frustrations between libraries and Elsevier, my focus on author’s rights, the legal viability of the loophole, barriers to scale, and a reaction from Elsevier:
Our policy provides a framework for authors to share as quickly and broadly as possible while also ensuring we an continue to publish trusted, curated high-quality content. As such, we provide options for authors to share articles at all stages of the publication process but ask that our embargo periods are respected for broad public sharing of articles published under the subscription model.
– Gemma Hersh, Elsevier VP for Open Science
I can’t share the full text of the article (I asked), but the reporter asked four questions, which I answered, in writing, at length, and which I want to share here. What follows is that exchange in Q and A form.
Q: How did you discover the loophole?
A: By working with authors. Folks in my role (scholarly communication librarians, institutional repository librarians, etc) work with a wide variety of constituents, most often grad students, post-docs, and faculty, from a variety of disciplines. Part of our role is to support their publishing activity, specifically to inform them of their rights as authors in accordance with their publication contracts and the journals they publish in, and support them in the exercise of those rights. To that end, I work with lots of authors to navigate the copyright and sharing policies of many publishers, including Elsevier. Going on 2 years ago, I was reviewing the Elsevier sharing policy to understand what one of my faculty could do with their work, and put the pieces together: if they can share the accepted manuscript immediately on their personal website or blog and that copy must bear a Creative Commons license, then anyone who can abide by that license may exercise it, including institutional and subject repositories. The CC license is all the permission we need in order to legally share the work in a repository immediately. Soon after realizing this, I saw a call for proposals to the Kraemer Copyright Conference in Colorado Springs, and submitted a poster proposal abstract outlining the idea. It was accepted, so I developed it further, and presented the poster at that conference in June 2017. It’s available here: https://kuscholarworks.ku.edu/handle/1808/24107. That led to a lot of conversations and feedback, and I developed it from there into the publication in JCEL.
Q: Have you helped researchers to use it already?
A: A few, yes. As I note in the article, exercising the loophole applies in a specific set of circumstances: author at my institution, who publishes in an Elsevier journal, who has a personal website or blog, elects to share their accepted manuscript on it, applies the CC license as required by the sharing policy, objects to the embargo for repository sharing, and communicates all of that to me or my colleagues who support our repository. So it’s a narrow group. My goal in publishing the article is that authors and scholarly communication support folks add it to their toolkit to leverage when these circumstances apply as a means of supporting their authors. As I mentioned above, we always work with authors to support them within the confines of the policies/rights of their chosen publisher/journal, so this is no different in that sense. My article is fundamentally about working within a policy to support author’s rights.
Q: Are you sure it’s legally watertight?
A: I’m not a lawyer, but I have discussed the loophole with numerous lawyers, first at the Kraemer Copyright Conference: people like Kenneth Crews, Kyle Courtney (@Harvard), Will Cross (@ North Carolina State University; disclosure: now my coPI on an unrelated research project), and Kevin Smith (disclosure: the dean of KU Libraries, also cited heavily in my article as someone involved in the pushback to the sharing policy when it was announced in 2015; he was at Duke at the time, and became dean of KU Libraries in about May 2016, if memory serves), all of whom are extremely well known and regarded experts on copyright as it applies to research, and none of whom expressed concerns about legal viability. In the now 14 months or so since the poster presentation, it has been openly licensed and available in my repository, where you can see the usage stats. As discussed in my article, Elsevier’s reaction immediately following the Kraemer Conference was not to challenge the legality of it, but to say it won’t work for long because they need their embargoes to maintain their financial interests (see citation of Gemma Hersh on the Global Open Access List in my article). Now that my article is out, it’s been circulating on Twitter and there was a discussion on the ACRL Scholarly Communications List (a listserv for scholcomm stakeholders), including responses again from Elsevier (Hersh). To this point, not a single person or organization has challenged the legality of the method. I think if it weren’t legally watertight, that would be what Elsevier would go after rather than what their actual response has been: it’s not in the spirit or intent of the policy, and we need embargoes to remain fiscally viable (my paraphrase/interpretation of “enabling us to continue to publish trusted, curated, content” and in alignment with statements made on the scholcomm list discussion). So I’m confident that if it weren’t legally watertight, someone would have pointed out how and why by this point.
Q: I contacted Elsevier, asking them whether the loophole was real, whether they’d update their policies now and whether their current policy constituted ‘openwashing’. They didn’t respond to those inquiries, but asked “that our embargo periods are respected”. Do you have any comment to make on that response?
A: They’re perfectly within their rights to request that their embargo periods be respected. Whether authors, scholcomm and repository folks, institutions, etc. choose to do so is entirely up to them. Some probably will honor that request. My impression from Twitter conversations surrounding the article is that some will not. As long as the policy is in place as presently constructed, authors and repository folks may exercise the rights granted by the CC license in accordance with their own goals and priorities. Per Creative Commons (emphasis theirs): “No additional restrictions — You may not apply legal terms or technological measures that legally restrict others from doing anything the license permits.” So Elsevier can ask that embargoes be respected, but they can’t enforce them as long as the CC license remains part of the policy.
Regarding updating the policy to close the loophole, that wasn’t my goal in the poster or the article. Elsevier is the subject of my work, but not my primary audience, which is my scholarly communication librarian and related peers. Given the intense criticism levied in 2015 on the announcement of the new sharing policy (as outlined in the article), and Elsevier’s standing their ground, I wouldn’t presume to be able to influence their policy. But if they were to do so (update the policy), their impulse based on their statements appears to be by getting rid of the CC license. I think that would be a mistake, a step back from openness, for which there will be a lot of criticism, including charges of openwashing. My suggestion would be to provide clarity and close the loophole by maintaining the CC license but getting rid of embargoes on accepted manuscripts. As far as I’m aware, up-to-date, peer-reviewed evidence that removing embargoes will harm subscriptions is either thin or non-existent. As I state in my article, the real threats to Elsevier’s bottom line are elsewhere: the standoff in Germany and Sweden, “big deal” cancellations by major institutions like Florida State University (disclosure: my previous institution), mass sharing of final published versions on ResearchGate and Academia.edu etc, Sci-Hub, and so on. I can’t believe that the haphazard and piecemeal sharing of accepted manuscripts in institutional repositories, the version which is already sharable immediately on the open web via personal website or blog under the present policy, when authors must take definitive action to make it so, will lead to financial ruin for a diversified company with demonstrated high profit margins and an enormous revenue stream that is actively acquiring research lifecycle infrastructure (Aries, bepress, SSRN, Mendeley, etc). It’s fascinating to me that there’s so much concern about unformatted Word documents when Elsevier still maintains control of the final published version (true in the present policy and with my loophole and in my suggestion for getting rid of embargoes on accepted manuscripts). Updating the policy to provide clarity and close the loophole by eliminating embargoes would be a real and significant step towards supporting authors and advancing openness, it would silence or lessen some criticism/critics, and position Elsevier in a highly covered (by media, my assumption) and visible leadership position among their publisher peers in the doing. To my mind, the conversation kicked up or reignited by my article isn’t a threat to Elsevier, it’s an opportunity to generate some good PR and substantiate their claims to support open access and open science with no real threat to their business model in the context of the other things I’ve described.