The Chronicle of Higher Education reports that Elsevier has issued a sweeping series of Digital Millennium Copyright Act (DMCA) take down notices regarding Elsevier-published content to Academia.edu, a file-sharing network for researchers and other academics.
Is this a footnote or the end of a chapter in the annals of digital science publishing? While it is too soon to know to what extent this incident will have broader implications, it does bring some important and long-simmering issues to the fore regarding sharing on professional networks, most of which the Chronicle article manages to miss.
Fortunately, the industry’s many pundits rode to the Chronicle’s rescue in the article’s comment section, which is worth reading in its entirety, and which better frames many of the issues involved. One particular exchange in the comments gets to the heart of the matter, but before we get to that a bit of background is in order.
It perhaps goes without saying that authors who publish with Elsevier and most other publishers sign publication agreements that transfer copyright or an exclusive publication license to the publisher and specify clearly what authors can and cannot do with their paper after publication. Generally speaking, publishers tend to frown upon systemic distribution and commercial reuse as such activities undermine their business models. Most publishers explicitly permit one-to-one or private group sharing, which may include emailing a paper to a colleague, using a paper in the classroom or a conference presentation, or other similar uses. Given that this is academic publishing, most publishers’ policies delineate educational or other noncommercial uses from commercial uses, allowing many of the former and restricting the latter without explicit permissions.
One can argue that authors should not sign such publications agreements. One can further argue that all researchers should publish only in journals that use CC-BY agreements, allowing unfettered systemic distribution and even commercial reuse. At some point in the future such arguments may win the day, but the reality today is that most researchers do sign such agreements and are legally bound to honor them.
Despite the fact that it is a form of (noncommercial) systemic distribution, publishers have, for the most part, become increasingly accepting (to greater or lesser degrees and up to a point) of Green Open Access (Green OA), whereby authors post PDFs of their papers on personal websites, institutional archives, or central subject archives such as PubMed Central or the arXiv. In many cases, publishers explicitly grant such permission or else do not enforce copyright or exclusive license provisions. In some cases publishers allow the final article of record to be deposited in such archives; in other cases only the accepted manuscript can be deposited. In some cases a delay of up to 12 months is required before repositories can make articles publicly available (though there is at least one proposed work-around for that which creates a one-to-one distribution model for such repositories), in other cases such deposits can be made public immediately.
Academia.edu, however, is not an institutional repository. Nor is it a subject-based repository like PubMed Central. Nor is it a noncommercial pre-print server like the arXiv or the new bioRxiv. Nor, despite its “.edu” domain address, is it a not-for-profit academic initiative of any kind. Academia.edu is a venture capital-backed software company that seeks to derive revenue by selling analytics about the activities of its installed user base, much like Facebook, LinkedIn, Mendeley, and many others. Central to its success, however, is the sharing of papers and the metrics around that activity. Or at least one might suppose it is central given this activity is enshrined in the organization’s tag line: “Share Research.”
Academia.edu, however, likely does not have the legal right to host much of the research that is being shared, both systemically and for its own commercial purposes, on its network. So how has Academia.edu managed to attract funding when its business model hinges on being able to share content that it may not have the right to share? Part of the answer lies in the “safe harbor” provision of the Digital Millennium Copyright Act that limits the liability of companies like Academia.edu (and YouTube, Facebook, etc.) that often host content under copyright to third parties (like publishers) provided the content was posted by their users and provided they respond to take down notices from rights holders.
So why did Academia.edu and their funders think that publishers would not aggressively issue such take down notices? One possible explanation might be found in the exchange from the comments section of the Chronicle article mentioned above. The exchange takes place between a commenter named “N.W.J.”, Amanda French of George Mason University, and William Gunn (a.k.a. “Mr. Gunn”) of Mendeley. I have reposted the comments below:
William Gunn puts forth an argument that Mendeley has long used for hosting content they do not have explicit permission from rights holders to host: that an individual’s profile page on Mendeley (or by extension, Academia.edu) is that individual’s “personal website” and therefore covered under the exemption that many publishers provide to authors in both copyright and exclusive licensing agreements, allowing authors to post PDFs of their work to their own personal or institutional (e.g. their laboratory or departmental) website. Since papers are loaded to both Mendeley and Academia.edu by authors, the argument is that the paper is “self-archived” to the author’s personal website.
Leaving aside the fact that many publishers permit only the author’s accepted manuscript (and not the final PDF) to be self-archived, were one to accept this argument, by logical extension this would mean any commercial site (Academia.edu, ResearchGate, Facebook, LinkedIn, Scribd, Google, etc.) that sets up a profile page would have the right to host any research loaded to the site by an author. The distinction between a profile page on an academic or professional network and a personal or institutional website does not strike me as difficult to make and if it were ever an open question, as Mr. Gunn asserts, the question seems to have just been answered by the legal department of his own employer.
Many publishers, including Elsevier, have let this argument slide (or at least have not aggressively issued take down notices) for many years now because academic networks, including Mendeley, Academia.edu, ResearchGate, and others were nascent and publishers wanted to see how they would grow and mature, whether viable business models would emerge, and whether the networks would ultimately have anything to offer publishers (user intelligence, licensing revenues, marketing channels, etc.).
With Elsevier’s acquisition of Mendeley earlier this year and recent escalation of take down notices to Academia.edu, we appear to have moved beyond the nascent phase (a more cynical observer might call it the “Napster phase”) of such networks and into a phase where they must be more rigorous with regard to content rights. This also means Elsevier’s own Mendeley will need to do same or face take down notices from the rest of the world’s STM publishers.
Of course this could just be a business tactic of Elsevier to create friction for competitors of Mendeley. Elsevier publishes a vast amount of content and I do not imagine they will issue take down notices to themselves if authors upload their own Elsevier-published papers to Mendeley. Academia.edu by contrast (and despite what CNET’s reporter seems to think) is not a publisher and therefore can’t retaliate in kind giving a potential advantage to Mendeley.
And while perhaps at a competitive disadvantage, this does not mean Academia.edu and ResearchGate will have to close up shop. First, Academia.edu are savvy enough that they could easily employ safeguards that enable the posting of PDFs where authors have systemic distribution rights (such as those published under CC-BY licenses or from publishers with liberal sharing policies). For those papers that are under copyright protection by a publisher, there are a number of options for sharing articles that do not involve uploading illicit PDFs.
Instead of hosting article PDF files themselves, such networks can instead link, via OpenURL and an integration with institutional libraries, to the publisher’s website, thereby providing seamless access to full-text content via the user’s institution. Indeed, and to its credit, Mendeley appears to already be doing this (though I have not seen evidence of their also scrubbing the site of previously posted PDFs nor of preventing users from posting PDFs they do not hold rights to). This may even lead to services and business models designed around institutional customers with workflow solutions tailored to departments, laboratories, classrooms, and other workgroups. Such solutions may actually be more lucrative than selling analytics about the activities of a self-selected user base to third parties.
In cases where a paper is under third-party copyright protection, instead of hosting PDF files themselves, academic networks might provide links to institutional repositories. Authors can self-archive whichever version of the article (final or accepted manuscript) is stipulated in their publishing agreement to a bona fide personal website or to an institutional or subject matter repository and then provide links from the academic network directly to the archived PDF (from a user perspective, there is no difference as to whose server hosts the file). Granted in many cases these would be accepted manuscripts and not the final version of record – though the final version could also be linked to via the publisher’s website (DOIs should make this fairly easy to do).
Academic networks might work out licensing agreements or other in-kind arrangements with publishers. They might, for instance, trade analytics in exchange for rights to serve publisher content to those without institutional access. Alternately, academic networks could limit access to PDFs to those directly connected with the researcher or individuals who explicity request such content – thereby changing from a systemic to a one-to-one distribution model.
Academic networks might further work out a deal with publishers that enables authors to “upgrade” their papers to Gold OA on the fly by paying an author publication fee (APC) at the point of sharing. The academic network might retain a commission for such transactions. Or, they might work out an integration with an article-rental service such as DeepDyve (or set up their own), which would provide another revenue source.
Despite the criticism Elsevier has received from OA advocates, there may be more than one silver lining here for the OA movement. If Academia.edu et al. begin linking to institutional and subject repositories instead of hosting PDFs, this will likely increase rates of self-archiving if such archiving becomes a necessary preliminary step for some forms of sharing. Such archives are more stable than the servers of a start-up and are likewise more readily indexed. The inability to systemically distribute their published research papers with no restrictions may also prompt authors who value such rights to seek out Gold OA titles or journals with Gold OA options, thereby providing a market-based solution that respects intellectual property rights while providing authors with clear choices. If enough authors value systemic and unfettered distribution rights, this will in turn increase the prevalence and profile of titles that offer such rights. In other words, were more publishers to enforce their intellectual property rights with respect to academic networks, it may well lead, over the longer term and if the market wants it, to more uptake of both institutional self-archiving and Gold OA publication.