New Predatory Publishing in Old Bottles

Was it illegal for Elsevier to sell open access articles to unsuspecting buyers? Maybe not, but it was wrong.

March 9, 2015

Many academic authors by now have heard the phrase “predatory publishers.” It’s usually associated with a list of fraudulent  pseudo-publishing operations maintained by Jeffrey Beall, whose crusade to name and shame these shady opportunists has made it to The New York Times. What worries me far more than these fairly obvious scams are the emerging business practices being used by highly profitable publishers with long and distinguished pedigrees that are treating open access as a new revenue stream that can be both open and closed – earning money through subscriptions and author fees. (Monica Berger and and Jill Cirasella have just published an excellent article on why we need a broader understanding of predatory publishing practices.) But double-dipping isn't enough. Witness a blogger’s report that Elsevier (founded in 1880) is selling articles published by Wiley (founded in 1807) as open access articles. Elsevier’s PR team responded quickly by removing the article from its for-sale options. Apparently, though, the company continues to sell open access articles originally published by Wiley under the same terms.

So far as I can tell, here’s how it went down (and hat tip to David Flander for alerting me to this curious story): Whoever funded the author paid Wiley something like $3,000 to make the work open access. Wiley published it as an open access work, and then apparently turned around and licensed the same work for an unknown sum to Elsevier so that Elsevier could sell it through its Science Direct platform for upwards of $30.

Apparently through some clever language in the author agreement, Wiley retains the rights to license open access works for a fee under its contracts with authors when Wiley take money from them (or more accurately, from the authors’ funders) to make an article open access. Though it is an unethical practice on its face, it may be legal. Toward the bottom of the lengthy document is the phrase “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” (my emphasis).

It's entirely possible that mistakes were made, that giant publishers ingesting paid-for open access articles into massive piles of content that they license without noticing that some of it has had its freedom ransomed for a fee. It may be that bit of author agreement language got left in by mistake. It could be these publishers are so big and so deeply involved in swapping intellectual property rights that they are unable to keep their records straight, rather like those bankers who couldn't keep track of mortgages as they were bundled, rebundled and resold, contributing to a global financial catastrophe. Even if this relicensing and selling of open access articles was in error, it would be a worrying sign of incompetence by publishers who may well feel too big to fail. 

One of the McGuffins in this caper is the Creative Commons license under which these open access articles are published. The article first written about was published under a CC-NC-ND license, which is quite restrictive and, as such, made this commercial reuse seem a breach of contract - except for that pesky language in the agreement which seems to give Wiley the right to exploit the work commercially post-publication anyway. CC-BY allows anyone to reuse a work with attribution. A lot of scientists and scholars have argued the fewer restrictions on scholarly publications, the better, but it makes some scholars nervous.

I personally am in favor of reserving as few right as possible for my scholarly and even frivolous work (like this blog). Yes, at times I’ve been surprised to see where things I wrote turns up, but I haven't been harmed by this reuse. It’s my small way of shaking my fist at the many ways that copyright has been distorted by moneyed interests since the power to grant limited monopolies to authors to encourage creativity was granted to congress in the U.S. constitution. At the time, the copyright term was 14 years (with a one-time renewal) and it required action on the part of the copyright holder. Now everything is all rights reserved by default, unless you takes steps to reserve fewer than all rights, and the copyright term is much longer. Most of the cultural production of the past century is either copyrighted or potentially under a copyright held by people or companies you cannot identify to seek permission to use it. This is not what the founders had in mind when they gave Congress this tool "to promote the Progress of Science and useful Arts.”

Likewise, reselling open access articles is not what the authors (or funders) of those articles intended. Fooling people into paying for open access articles is conduct unbecoming. Scholars, funding agencies, and the scholarly societies that often outsource their publishing program to commercial firms should hold publishers' feet to the fire and prohibit this triple dipping.   

Meanwhile, our best bet is to avoid predatory publishers, including those not on Beall’s list - Elsevier, Wiley, or any other “legitimate” publisher that knowingly or carelessly resells work that was intended by its authors to be available for free. It may be legal, but it isn’t right.  




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