Editor’s Note: Over the past several years, some online commenters have uncovered examples of publishers failing to make freely available articles for which an article processing charge had been paid for that very purpose. After raising this issue recently in response to a Scholarly Kitchen posting, one of our regular commenters investigated the issue more closely. This is his report. Charles Oppenheim is a Visiting Professor at Robert Gordon University, Aberdeen, UK and at Cass Business School, London, UK, and is also an independent consultant on intellectual property rights and scholarly publications.
In March and April 2017, Ross Mounce’s blog listed a number of claims that certain scholarly journal publishers were letting some of their authors down. These were authors who had paid an Article Processing Charge (APC) to make their articles available free of charge under the Gold Open Access route. The claim was that these articles were still behind a paywall even though they should have been openly available. There is a paucity of further information on the topic. I am unsure when this problem was first identified, though this 2014 Techdirt piece, and the references cited therein, may be the earliest article to try to bring together examples.
I decided to investigate how common a problem this was. To do this, I began by referring to Paywallwatch, a web site specializing in identifying such cases. I also consulted with a few experts on the topic and put out a general appeal on Twitter in late April 2017 seeking examples of the problem – while also inviting people to retweet my request for information. I know that about 60 people retweeted my initial request, but do not know how many further retweets of the retweeting occurred. Nonetheless, I received virtually no responses to my Twitter appeal for information, and the responses I did receive (for which I’m grateful) led me to examples of which I was already aware. So I have had to rely on the few sources that specialize in the problem.
Mounce’s blog has repeatedly drawn attention to examples of such transgressions by publishers, and includes the somewhat startling claim that Elsevier had to refund $70,000 to people who had paid for access to articles when those articles should have been available for free. However, the 2014 Elsevier article by Chris Shillum and Alicia Wise to which Mounce refers only mentions 50 customers having to be refunded $4,000 in total, and it is unclear over what time period these refunds were made. The Elsevier article also explains some of the reasons for the problems arising.
Mounce has posed four pertinent questions in his blog to Elsevier – questions to which the company does not appear to have responded:
1.) Will Elsevier openly publish on a single web page, on a continuous, ongoing basis, the exact DOIs of all articles that Elsevier has been paid to make “hybridOA”, including the DOIs of articles that Elsevier were paid to make open access, that now reside at journals published by other publishers (if the journal was subsequently transferred to another publisher)?
2.) Will Elsevier refund 100% of the paid APC to each institution, funder, or individual that has a wrongly paywalled paid-for “open access” article behind a paywall?
3.) Will Elsevier hire and fully pay for an independent 3rd party forensic accounting firm to go through their pay-per-view and re-use licensing data/systems and records, including the period from January 1st 2005 until today (23rd February 2017), to produce a thorough openly available report on the extent of PPV payments AND re-use licensing payments for articles that should not have been sold to access, or to re-use?
4.) What meaningful assurances can Elsevier give that it will not make these mistakes again, given that it appears to be making these mistakes over and over again?
It’s not just Elsevier that Mounce has criticized; in his blog, he notes Oxford University Press as well, citing one specific journal article as an example.
In a similar vein, the Paywallwatch site has recorded instances, especially by Oxford University Press, Wiley and Elsevier, of such problems. Nonetheless, it is difficult to get a handle on how frequently such problems arise. The Paywallwatch site has 38 reports and comments on the issue, the most recent dated early April 2017. As this web site seems to have acted as a place for systematically collecting reports of these problems, could it be that no new problems have been unearthed in recent weeks? There may well be other reasons for the silence, of course.
Mounce makes a rough calculation of the likely financial gains by Elsevier through incorrectly paywalling articles that should be free, and makes a particularly telling point that the losers are not just those who incorrectly paid for access, but also the authors of the papers in question, as for a period of time their material was barred to non-subscribers when they should have been freely available, influencing other scholars and possibly earning citations as well.
Though some authors have tried to portray the matter as a plot by publishers to cheat the scholarly community, I agree with David Crotty that the problems no doubt represent errors rather than conspiracy. (Though I disagree with him that this matter can be dismissed as a “non-controversy.”)
What about publishers’ views? Dr Alicia Wise, of Elsevier, became aware of my request for information, and responded as follows:
We are looking into this, and you are right that actual errors are very rare. They occur from time to time for all sorts of different reasons, as is normal in any complex system. What complicates things enormously in this space is that one stakeholder can regard something as an error when other stakeholders do not, because there is not agreement or consensus. To give you an example, the Wellcome Trust view articles by their grant recipients as uncompliant if they are published with anything other than a CC-BY license. Our policy is to respect the fact that copyright is the authors, and to give them a choice of license. So who has made an error if an article is published without a CC-BY license? WT blames the publisher (which is a little weird as their beef is surely with their grant recipient; in our view the correct process was followed and the outcome is what it is). My sense is that your article could helpfully draw attention to the bewildering array of approaches, the utter lack of clarity of consensus, and the need for more pragmatic work by stakeholders to get aligned with the objective of making a system that works for all.
Wise is no doubt correct about the difficulty of keeping track of everyone’s conflicting standards as to what constitutes “real” OA, but the vagaries of OA definitions and mandate compliance are not at issue here; the question at hand is much simpler: how often does an author pay an APC to make their work freely available, only later to find that their work is behind a paywall? In other words, I want to know how often this occurs, and why. If the problem is not being caused deliberately, then is it caused by poor technical systems, by poor management practices, or by staff incompetence? Finally, I want to know how much of a priority publishers are giving to resolving the issues raised. At the moment I simply do not know.
My conclusions: the problem seems to be relatively small; the lack of any examples in response to my retweeted plea is a good indication of this. So let us assume that the number of incorrectly paywalled articles is a very small percentage of the total number of articles published by the major scholarly publishers. Nevertheless, each case represents a real problem. It is not only annoying to those who paid paywall fees, and to would-be readers; it is also frustrating and expensive for the publishers, who no doubt have to spend a lot of bureaucratic time and effort tracking down the cause of the problem and paying refunds when they receive a complaint from aggrieved customers. More importantly still, the issue causes considerable reputational damage to the major publishers, who are perceived, rightly in my view, as not giving the matter high priority, and who do not always provide ready answers to questions about how they are dealing with issue. In the first instance, the publishers should respond to the demands laid out by Mounce. His point number 3 is the really important one. The major scholarly publishers should ask independent consultants to assess the problem, and make recommendations for improvement. However, for such work to be seen as credible by the outside world, the consultants must be given an open brief and must be allowed to publish their reports – as Open Access documents, of course!
 This is not a hint to ask me to do the consultancy; there are publishing consultants much better placed than I who could do the work.