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Image via Joe Pemberton.

Something of a tempest in a teacup was stirred up this week when a researcher came across an open access article in a journal that had moved between publishers and the new version wasn’t correctly displayed and licensed. While much of the furor stems from a poor understanding of Hanlon’s Razor, it’s also a good reminder of the complexity of moving a journal to a new platform, as well as how confusing Creative Commons (CC) licenses can be to even the staunchest of advocates.

You may have missed it, but the journal Clinical Microbiology and Infection recently moved from a publishing agreement with Wiley to one with Elsevier. The journal is owned by the European Society of Clinical Microbiology and Infectious Diseases (ESCMID). For those unfamiliar with society-owned journals, some are self-published, but in this age of market consolidation, most society journals work through partnerships with publishers. These agreements work in the society’s benefit–they get to take advantage of economies of scale along with the infrastructure and superior technologies in place for the publisher, while at the same time the publisher assumes much of the financial risk on the society’s behalf.

These partnerships are usually set up for a limited timespan, often under 5 or 10 year contracts. As the contract expires, the society can re-sign with their current publisher or issue a request for proposals (RFP) to find a new home. When the journal does move to a new publisher, it’s an incredibly complex task that often takes up much of a year. At OUP for example, we have a team of employees solely dedicated to managing these transitions.

Having been through the process multiple times (and being in the midst of a trying transition now), I can attest that there is an absurd amount of detail required, and that while you do your best to make everything perfect, sometimes things slip through the cracks. When noticed, you move quickly to fix errors, often in an iterative manner. It gets complicated when different systems don’t exactly line up. For example, I’ve worked with a journal that switched the way they do volume numbers about 10 years ago, and their pre-switch numbering system doesn’t work exactly right with our platform, so there’s a surprising amount of coding needed to better align things. I’ve also worked with a journal that published “open access” articles for a charge that were made freely available but kept under traditional copyright. Converting those articles to a system based around using CC approaches, particularly when the authors signed their licenses years ago, can be pretty complicated.

In this particular case, what appears to have happened is that Clinical Microbiology and Infection moved from Wiley to Elsevier, and Wiley’s metadata didn’t quite jibe with Elsevier’s system, and some articles that were meant to be OA ended up being incorrectly labeled. While many seem willing to jump on Elsevier and assume this is part of some nefarious plot to defraud authors, this is more a case of dropping the ball on one aspect of a complex process. Even when operating in good faith, mistakes happen. To their credit, when notified, Elsevier did the right thing, and quickly corrected the problem.

One fascinating aspect of the whole non-controversy is how poorly those complaining seem to understand Creative Commons licenses. There’s a problematic assumption that a CC BY-NC-ND license prevents anyone from making commercial reuse of the article (or a derivative work, for that matter). This is resoundingly incorrect. An NC license merely means that in order to make commercial use of the article, one must obtain permission from the copyright holder. It is perhaps particularly ironic that the loudest expression of this confusion stems from someone who has regularly denigrated researchers for not fully understanding licensing terms.

Most publishers receive this permission at the point of publication. The author grants the publisher rights through a licensing agreement, which usually includes the owner of the journal (in this case ESCMID). These agreements give the publisher permission to make commercial use of the article (this is clearly stated in Wiley’s information for authors and samples of their licenses are available under question 26 here). This allows the publisher to do things like run advertisements on their website, include the article as a freely available part of a subscription product or link to services where authors are charged fees for OA publication, all of which could potentially be seen as commercial activities. Further, most licenses also grant the publisher and the journal owner the right to grant others permission for commercial exploitation, hence the ability to include the paper with aggregators like OVID and EBSCO, or transfer the terms over to a new publisher.

Reputable publishers follow the TRANSFER Code of Practice when transitioning a journal either in or out of their platforms. As that code specifically states, “The receiving publisher will ensure that any content that has been previously published under license without charge to users will continue to be made available under the existing terms.” In this case, Elsevier, after a brief hiccup, has followed through on that pledge.

To summarize this case of “much ado about nothing,” CC BY-NC licenses merely prevent commercial exploitation without permission, but that permission is regularly granted to publishers and the owners of journals using that particular CC license.  No one is pulling a fast one here. Journal transitions are complicated and sometimes errors happen, which should be (and in this case were) quickly corrected.

*updated to include a link to Wiley’s sample licenses for authors

David Crotty

David Crotty

David Crotty is the Editorial Director, Journals Policy for Oxford University Press. He serves on the Board of Directors for the STM Association, the Society for Scholarly Publishing and CHOR, Inc. David received his PhD in Genetics from Columbia University and did developmental neuroscience research at Caltech before moving from the bench to publishing.

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Discussion

48 Thoughts on "More Creative Commons Confusion: When Does NC Really Mean "Non-Commercial"?"

The 27 wrongly paywalled articles were wrongly paywalled for 2 months and 9 days. So, just to be clear, the problem was only corrected after 2 months and 9 days of error. I don’t call that ‘quickly corrected’.

Can you reasonably expect someone to correct a problem of which they are unaware? How long did it take them to fix this after it was brought to their attention?

Don’t the big publishers say that they need to charge authors (and libraries!) ever-increasing fees in order to provide professional services and publishing expertise? You know, the kind of services and expertise that one might reasonably expect to include this kind of due diligence?

Again, I agree, this was done in error. Due diligence becomes increasingly difficult at scale (and remember that Elsevier is publishing thousands of journals so they’re probably at the far end as far as scale), but the market will certainly determine if this is an important issue and respond accordingly.

No one is pulling a fast one here? That’s exactly how I would describe offering authors CC-BY-NC for a fee, while also granting themselves (the publisher) a nice commercial use licence in parallel. Always read the small print!

How can you charge someone a fee for publication and not have it be a commercial activity? Also, by allowing the journal to run ads and sub-license the content to aggregators, you bring in revenue from outside the research community, allowing the journal to reduce the dependence on revenue from authors/research grants which keeps prices down. Is this a bad thing?

Okay, so Elsevier have the rights sub-licensed from the Society who have an agreement with the Author. So what? Elsevier should not have required Ross to make them aware of this mistake. For them not to have noticed after 2 months is a bit ridiculous. I wonder how many people purchased the articles in that time and whether or not Elsevier have contacted them to make recompense.

The last time this happened at Elsevier only last year, in March 2014 http://www.timeshighereducation.co.uk/news/elsevier-bumps-on-road-to-open-access/2012238.article they refunded ALL the APC’s paid by the author/funders of the articles concerned.

Why have Wiley/Elsevier not given full APC refunds in this case, to the 27 articles concerned? The length of time the articles were wrongly paywalled is similar in some cases with the March 2014 incident.

[ APC = Article Processing Charge , charged by some publishers to make a work ‘open access’ ]

You’d have to ask Elsevier about this. In this case there are additional complications–the OA fees were not paid to Elsevier, so should refunding fall to the society or to Wiley instead?

WOW 69 days! You have to be kidding over your outrage!

Billing probably had not gone out for two months. I don’t think you or Andy have ever worked in a large organization. If you are in a university setting, ask how long it would take to receive a refund for tuition should you drop out during the time one can withdraw! Or how about getting a refund for a piece of equipment.

Regarding the discovery of the error. Elsevier probably publishes some 5,000+ articles per month. Of which some 27 (you have to be kidding me when you express such umbrage) were erroneously charged a fee. The error was caught and is being corrected. Lastly, to assume (and we know what that means) that the previous circumstance is the same as the one mentioned is a giant leap of faith on your behalf.

Your comments are rather naive, but if you want to be miffed so be it.

“CC BY-NC licenses merely prevent commercial exploitation without permission” is a bit of an overstatement because, of course, fair use applies allowing some commercial use of some material without permission. This reminds me of those ad terrorem copyright notices, still commonly used by publishers today who should know better, that declare that nothing in the book can be reproduced in any manner whatsoever for any purpose without permission . . . .

Fair enough (no pun intended). The interesting philosophical issue raised by all this is whether commercial exploitation is something we want to encourage. The strongest OA advocates insist on a CC BY license, in particular because it allows anyone to commercially exploit a work and hence drive economic development. Here you have a similar group arguing the opposite, that commercial exploitation is a bad thing and should be strictly limited. Seems contradictory to me.

I think the suggestion is that if an Author pays for CC-BY-NC then it should apply not only to the end users, but to the Publisher as well…

Can you explain why that makes sense? The author has paid to be able to decide whether anyone can commercially exploit the copyrighted piece of text and as part of the arrangement, is granting those rights to the publisher. Without those rights, it is unlikely that the publisher would be able to publish the article (see post above about ability to run ads, link to selling subscriptions, other products or even article submission systems where an APC is charged, not to mention fulfill contractual obligations with society partners). Can you explain how a journal would be able to do any of those things without violating the terms of the NC license? And do you think those things are bad and should be prevented? Is it wrong that journals bring in revenue from sources outside of research budgets or should all expenses be focused solely on research funds?

It depends whether the author retains all copyright in the article, except for assigning it the NC license and granting the publisher a license to publish (what Wiley’s author information describes), or whether the author signs over all copyright to a publisher who assigns the NC license.

In both cases, the publisher is able to publish the article and commercially exploit it themselves, having explicitly received the right to do so from the author, outside of the NC license. In the first case, however, the *author* is the only one who can decide about subsequent commercial uses, charging fees, granting permission, etc. In the second, the *publisher* decides. In both cases, Wiley can sell the article to Elsevier. In the first case, though, Wiley can’t give Elsevier resale/re-licensing rights, because Wiley doesn’t have them. That’s the problem here.

NC licenses do not preclude separate licensing agreements. So many people seem confused by this, and seem to think that if it’s NC, it can never be commercially exploited ever.

I’m not aware of any OA publications that require the author to relinquish copyright (other than the one oddity mentioned above). Most do require authors to grant some rights to the publisher, and those vary depending on the type of licensing used. Generally in such licenses, when NC is used, the publisher requires the right to also administer permission for commercial reuse. The reasons are explained in the post above, but one obvious use is licensing to aggregators (who then resell the paper as part of their package).

To clarify here though, Wiley did not sell the article to Elsevier. The journal is owned by the society and when their contract with Wiley ended, they signed a new agreement with Elsevier. The society is the group making the transfer of rights here, and in my experience, the license to publish signed for any society-owned journal includes the society owner as the recipient of those rights, along with the publisher.

Given that this is standard practice, I fail to see why there is a problem here. Also, why is this necessarily a bad thing for authors? They want their papers read as widely as possible, and sub-licensing helps make that happen. Is it better for an author if their paper is kept out of the aggregator packages that are so widely available?

Sure, the publisher may require that an author transfer the right to negotiate reuse licensing. But the information Wiley provided, the “clear statement” you link to, says nothing about that. The only document you cite does not include a clear statement, and strongly implies that the only rights an author transfers to Wiley is the right to publish, and to be recognized as the first publisher.

If Wiley’s author information said that the author also transferred the right to administer commercial licenses, then I wouldn’t have a problem with what happened in this case. If you pointed to an author agreement with the society owners, which similarly stated that the author gives up this reuse control, ditto. But you haven’t, and Wiley’s info doesn’t. (As far as the documents shown so far indicate, the author has no agreement with the society, only with the publisher)

This is a bad thing because either Wiley has provided misleading information to the public, falsely suggesting that the author retains all rights except for the license to publish, when in reality the author is expected to transfer more rights, OR the publisher has exercised rights which it did not have.

Does it really make sense to talk of copyright as though it were a single entity that an author either retains or transfers? Ever since the 1976 Act came into effect, copyright has been a bundle of rights, and one properly should not be talking about THE copyright in a work. Copyright is infinitely divisible into any number of specific rights, any one or more of which can be transferred, leaving the author with the rights remaining in the bundle, which do not constitute copyright in any singular sense.

Indeed, there are some who are against “commercial exploitation” in principle, but these folk usually are against CC-BY as well. I think Colleen has a point when she raises the issue of “deserved perception”, to which I would add the issue of being the biggest, which always makes you a target, deserved or not. It’s also true that if you have a complex system and no incentive (other than professionalism) to make sure things don’t fall through the cracks, things will more often fall through the cracks than they do in the systems where you’re actually taking in money. For example, I would guess that there are relatively few instances where a library was supposed to have been billed, but accidentally wasn’t. This is an example of “broken by design”. (see also DRM)

The obvious solution to this is to have the license information included in the file itself, so things don’t get dropped out when the file is passed around. Elsevier does this, though I think only for the past several years.

That’s why I thought it was kind of strange. If you’re for CC BY, the point is to encourage unencumbered commercial exploitation, and yet here there was an uproar over commercial exploitation under CC BY-NC with explicit permission. Which to me suggests some confusion about how these things work.

I think there is some incentive for Elsevier to perform well in these areas. They are always trying to win more society journal business, and at some point the contract with this society will be up for renewal. Performing well helps them win new business and keep current business. I suspect this event is more just a result of complexity. Things are added to a complicated system and introduce a new variable and you have to adjust to make them work right. It is often an iterative process.

And I agree 100% that the cure here is better metadata and universal standards. We’re all working with similar content but on vastly different systems, so finding a way that all can speak a common language would make life vastly easier.

Thanks for the clarification on this David. With thousands of papers and sometimes messy metadata, stuff can and will go wrong. Things that seem to work in a test environment sometimes break in a live environment. I wish I could say that all our technical difficulties were discovered by staff and quickly fixed but I am afraid that sometimes it sneaks through and you don’t know there is an error until someone reports it. Even in a single platform, there are separate “bins” for content, licenses or business rules, and eCommerce. You hope that all of them line up properly but with importing new content, particularly using metadata not created for your platform specifically, sometimes those links don’t work.

“The author grants the publisher rights through a licensing agreement, which usually includes the owner of the journal (in this case ESCMID). These agreements give the publisher permission to make commercial use of the article (this is clearly stated in Wiley’s information for authors). ”

No, it isn’t clearly stated at all. I assume you didn’t actually read Wiley’s information for authors? Nothing in the terms for CC-BY-NC articles grants Wiley the right to make further licensing arrangements on behalf of the author.

Here’s what the clear statement says:
“Copyright on any research article published by a Wiley Open Access journal is retained by the author(s). Authors grant Wiley a license to publish the article and identify itself as the original publisher. Authors also grant any third party the right to use the article freely as long as its integrity is maintained and its original authors, citation details and publisher are identified.”

That’s it, as far as explicit transfer of rights is concerned–and copyright has to be transferred explicitly, in writing. It can’t be inferred, or read between the lines, or logically extrapolated from some other comment, despite the widespread response to the Wiley author agreement.

Later on, the information for authors directs commercial users to negotiate with, and pay, Wiley–but nothing in the document transfers that right to Wiley. Wiley just claims it for themselves, despite noting that the author retains copyright, and only grants limited rights.

(Yes, individual copyright transfer agreements might actually explicitly transfer other rights, but until we can see such a document, we can only go off of Wiley’s information for authors.)

Are you suggesting that authors of research papers are intellectually unable to connect the obvious dots as you have here? Or that Wiley’s license to publish (no “copyright transfer agreement” is apparently used) fails to state the rights that Wiley requires and that they’re somehow tricking authors?

It doesn’t matter whether we can connect the dots. Transfer of any of the many rights which copyright gives to an author can only be accomplished by an explicit agreement. Not insinuation, suggestion, inference, dot-connecting

“17 USC § 204 . Execution of transfers of copyright ownership

(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.”

Wiley is claiming the right to negotiate licenses of the work, without any indication that the author and copyright holder has granted them this right.

The license to publish allows Wiley to make a specific commercial use of the work. The act of publication does not require the publisher to be able to negotiate all further commercial uses of the work. The right to license other commercial uses, by other users, seems to be retained by the author, assuming this document is an accurate representation of the (unseen and as yet irrelevant to this discussion) actual agreement signed by the author.

How can you determine what rights Wiley’s license includes without having read the license? Granting of these rights is a standard practice where NC licenses are used. The web page giving a rough guide to authors is not itself a legally binding agreement. If those rights are of paramount interest (or any interest at all) to an author, do you think that maybe they might ask their publisher about them? Or read the license before signing it?

This is what is known as a tempest in a teapot. There was a mistake. It has been fixed. Move on.

Elsevier is trying to talk its way out of a situation it behaved itself into. By that I do not mean this instance where it was a mistake, (albeit one that they had no financial incentive to discover on their own and every financial incentive NOT to discover). If Elsevier had a positive reputation among libraries and librarians people would not have assumed they were acting in bad faith.

David; why do publishers need a commercialisation clause to handle including content (freely) in a subscription package? I would have thought that the simplest solution would be to exclude all such free content from a subscription package (because the free content is, well, free) in the first place. I’m not sure I follow your reasoning on that one point (I understand the other reasons why commercialisation rights of some sort are needed by publishers for otherwise NC works) – could you expand?

First, know that I am not a lawyer, and that any legal advice coming from me should be considered to have the same level of credibility as legal advice coming from a barnyard animal, or worse, something you read on the internet.

That said, one of the big issues with the NC license is that there is no definition for what is considered “commercial” versus “non-commercial” use of the material. So basically you’re on your own to figure it out and hope you don’t get sued (or better yet, just ask for permission). Because of that uncertainty, one tends toward the “belt and suspenders” approach (http://onlinelaw.wustl.edu/legal-english-belt-and-suspenders/) just to make sure everything is covered.

So if you publish an NC licensed article among your regular articles, can you run ads on that page? Does the page carrying the NC article have links to info on subscribing to the journal, or links to submitting an OA paper where the author will be asked to pay you a fee? Do you link out from that page to any other products that you sell? Do you use that article in any sort of promotions, mailing or other marketing? Heck, are the usage statistics you collect part of the package you deliver to librarians in order to convince them to subscribe to the journal?

Are any of these commercial activities? Your guess is as good as mine. But rather than being uncertain, or trying to create a parallel publication system that is entirely separate and used only for NC articles, getting permission from the author seems the easiest path to take.

Perhaps you misunderstood or I wasn’t clear (the latter most likely), but I was interested in why, if it causes (or at least contributes to the) headaches for publishers, why do they include free content in subscription packages? I suppose if the subscription is for the “Journal of Foo” and half the papers in the Journal of Foo are free then that may cause a problem. But if the subscription were for the “non-free papers in the Journal of Foo”, publishers wouldn’t have a problem. I guess this would get woolly and difficult because subscription deals to libraries etc extend out for many years and publishers have no idea how many non-free papers will be included. But still…

It just struck me as odd that you used that example, that publishers are concerned that their subscription income might be considered commercial exploitation of NC works, because they are packaging those free papers up with everything else in the same subscription. Separating the sources of articles would alleviate that problem and would work towards countering the “double dipping” claims that are voiced by some.

It’s a good point and it gets to some of the complexity here. If I’m selling a subscription to you, and you’re basing that on what the journal has previously published and the journal’s Impact Factor for example, then those NC articles are contributing to both causes–is that a commercial reuse?

But there are some efforts going on that I’ve heard of to separate out the two sets of articles, at least in terms of subscription sales and “double dipping” as you suggest. The idea there is that the journal announces an annual page budget–for your subscription, you will get X number of pages of articles. Any OA articles do not count toward that total. So as a subscriber, you’re only paying for subscription articles and any OA articles are a bonus.

It’s an interesting approach and offers a great level of transparency that can’t be seen from most of the discounting plans already in use. The downsides are 1) does this encourage a journal to accept more substandard papers in order to hit their page count, and perhaps more importantly, 2) it does nothing to relieve the extreme budget pressures on libraries.

Point 2 is important here. The complaints about double dipping stem from institutions having to pay more than they’re paying now–they have to pay for their own authors to publish OA, but still have to pay to access articles from authors who aren’t under the same mandates. Hence they have to spend a lot more. This approach does in fact completely solve the double dipping question, but it doesn’t result in any cost savings for librarians. For that reason, it may not satisfy.

This article misses three points. First, as has been pointed out, this was not a one-off mistake but one of a long litany of similar mistakes. Second, in all Elsevier’s responses, it has never had the decency to say “sorry”. Third, as the article pointed out, there is a Code of Practice on transfer of rights from one publisher to another and Elsevier breached it. Summing up, it is clear that Elsevier’s systems are not up to scratch. Having worked in the commercial scholarly publishing industry for 12 years, I KNOW (not guessing here) that if something is sufficient priority, it gets addressed fast. The fact that these events keep recurring shows that it is not a priority for Elsevier. The original article trivialises what is in fact a deep seated problem in Elsevier; this is not a storm in a teacup, but evidence of a real malaise in Elsevier, and the author should have been honest enough to acknowledge this.

This is what I call Evil Elsevier Syndrome or EES. A witch hunt in which the witch has been found, or so say the townspeople. Who shall be next?

What a silly reply! I am not opposed to Elsevier or any other commercial publisher and I don’t (unlike some) believe Elsevier is evil. I am saying it is incompetent, something quite different.

It reads like a moral claim, decency and all that, but in any case Elsevier is not a person so it cannot be incompetent. (In analytical philosophy this is called a category mistake.) Elsevier probably employs some incompetent people among its thousands of employees, because every large firm probably does, but this does not sound like a case of that. Your sweeping condemnation is ill conceived (I will not say silly).

The systems it has may be poorly designed, and/or the staff it employs may not use them properly. Either way, the company needs to apologise, and needs to address the problems that allow mistakes like this to happen. That’s not a sweeping condemnation, but advice offered in good faith. You don’t know me, so stop trying to read inaccurate motives in my comments.

I have made no claim of motive. I simply reject your charge of incompetence in favor of David Crotty’s explanation. Transition is a highly complex process so mistakes are inevitable, thus they are not evidence of incompetence. On the contrary I argue for a management system (chaos management) in which error is expected, in proportion to complexity. As in thermodynamics, wasted effort is inevitable. Or as a friend puts it: “nobody’s perfit.”

Ignoring the fact that you DID attribute a motive to my comment (“Evil Elsevier Syndrome”), let’s step back a bit. The problem of Elsevier charging for OA articles first arose about a year ago. At the time Elsevier announced it was addressing the issue in the coming weeks. Since then, the problem has been repeated several times – this Wiley instance is just the latest of a string of them. So how can we explain the inability of Elsevier to resolve the matter? I can see three possible reasons: 1) the problem turned out to be much harder than first anticipated, Elsevier are still working on it, and it may be a while before it is resolved; 2) Elsevier staff are not competent enough to resolve the problem; or 3) the announcement a year ago that the matter was being addressed was a cynical mis-statement and the matter is low priority for the company. If it is 1), then Elsevier was incompetent in releasing a faulty service without adequate alpha and beta testing. If it is 2) then Elsevier is using incompetent staff. If it is 3), which I don’t believe myself, then Elsevier is Evil. You seem to be arguing for 1). When I worked in the electronic publishing industry, all major developments/upgrades were subject to thorough alpha and beta testing. “Expecting errors” is not what what a well-run company should be doing.

Clearly we disagree and perhaps we should leave it at that. I will say that expecting errors does not mean condoning errors, quite the contrary. It means setting up systems, hot lines for example, that catch errors early when they are expected. I think we agree that Elsevier has not done a good job of this. But I do not call a company with thousands of journals and many thousands of employees (and volunteer editors) incompetent when something like this happens. It appears to me that it is because of EES that these minor problems are getting so much play.

These are not minor problems and they give the EES folk ammunition, which is not clever. Based on his remarks, I do wonder if Mr Wojick has ever worked in the scholarly publishing industry.

How many papers are we talking about, out of the estimated 2 million published annually? (If you want to be formal it is Dr. Wojick.)

Totally misses the point. Thank you for confirming what I suspected – that Dr Wojick knows absolutely nothing about the scholarly publishing business. (If you want to be formal it is Professor Oppenheim).

I think this thread has hit the point of diminishing returns. Time to move on folks.

Just to elaborate, suppose the British Journal of Funny Walks, published by the University of Lesser Lefthampton, had this problem. Would we still be discussing it?

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