University of Bristol

Mike Taylor

As explained in careful detail [over at Stupid Patent of the
Month](https://www.sec.uno/2016/08/31/stupid-patent-of-the-month-elsevier-patents-online-peer-review/),
Elsevier has applied for, and been granted, a patent for online
peer-review. The special sauce that persuaded the US Patent Office that
this is a new invention is [cascading peer
review](http://svpow.com/2013/03/19/the-only-winning-move-is-not-to-play/)
--- an idea so obvious and so well-established that even [The Scholarly
Kitchen was writing about it as a commonplace in
2010](https://scholarlykitchen.sspnet.org/2010/10/12/cascading-peer-review-future-of-open-access/).

::: {#attachment_13655 .wp-caption .alignnone shortcode="caption" style="width: 490px"}
[![Apparently this is from the actual patent. I can\'t verify that at
the moment, as the site hosting it seems to be
down.](https://svpow.files.wordpress.com/2016/08/elsevier-peer-review-patent.png?w=480&h=319){.size-full
.wp-image-13655 aria-describedby="caption-attachment-13655"
loading="lazy" attachment-id="13655"
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image-title="elsevier-peer-review-patent" image-description=""
image-caption="<p>Apparently this is from the actual patent. I can’t verify that at the moment, as the site hosting it seems to be down.</p>
"
medium-file="https://svpow.files.wordpress.com/2016/08/elsevier-peer-review-patent.png?w=300"
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sizes="(max-width: 480px) 100vw, 480px"}](https://svpow.files.wordpress.com/2016/08/elsevier-peer-review-patent.png)

Apparently this is from the actual patent. I can't verify that at the
moment, as the site hosting it seems to be down.
:::

Well. What can this mean?

A cynic might think that this is the first step an untrustworthy company
would take preparatory to filing a lot of time-wasting and
resource-sapping nuisance lawsuits on its smaller, faster-moving
competitors. They certainly have previous in the courts: remember that
[they have brought legal action their own
customers](http://svpow.com/2012/01/27/publishers-invent-a-whole-new-form-of-evil-suing-their-customers/)
as well as [threatening
Academia.edu](http://svpow.com/2013/12/06/elsevier-is-taking-down-papers-from-academia-edu/)
and of course [trying to take Sci-Hub
down](http://svpow.com/2016/02/17/barbra-streisand-elsevier-and-sci-hub/).

Elsevier representatives are talking this down: [Tom Reller has
tweeted](https://twitter.com/TomReller/status/771004401406345217) "There
is no need for concern regarding the patent. It's simply meant to
protect our own proprietary waterfall system from being copied" ---
which would be fine, had their proprietary waterfall system not been
itself copied from the ample prior art. Similarly, [Alicia Wise has said
on a public mailing
list](https://groups.google.com/d/msg/osi2016-25/4REh5gD5Zko/JlhBdHbmAQAJ)
"People appear to be suggesting that we patented online peer review in
an attempt to own it.  No, we just patented our own novel systems."
Well. Let's hope.

But Cathy Wojewodzki, on the same list, [asked the key
question](https://groups.google.com/d/msg/osi2016-25/4REh5gD5Zko/nckuX1rnAQAJ):

> I guess our real question is Why did you patent this? What is it you
> hope to market or control?

We await a meaningful answer.


As explained in careful detail over at Stupid Patent of the Month, Elsevier has applied for, and been granted, a patent for online peer-review. The special sauce that persuaded the US Patent Office that this is a new invention is cascading peer review — an idea so obvious and so well-established that even The Scholarly Kitchen was writing about it as a commonplace in 2010.

Another day, another Elsevier power-grab

In response to my post [Copyright from the lens of
reality](http://svpow.com/2015/05/07/copyright-from-the-lens-of-reality/ "Copyright from the lens of reality")
and other rebuttals of his original post, Elseviers General Counsel Mark
Seeley has provided [a lengthy
comment](https://www.elsevier.com/connect/copyright-from-the-lens-of-a-lawyer-and-poet#comment-2017237856).
Here's my response (also posted as a comment on [the original
article](https://www.elsevier.com/connect/copyright-from-the-lens-of-a-lawyer-and-poet),
but I'm waiting for it to be moderated.)

------------------------------------------------------------------------

 

Hi, Mark, thanks for engaging. You write:

> With respect to the societal bargain, I would simply note that, in my
> view, the framers believed that by providing rights they would
> encourage creative works, and that this benefits society as a whole.

Here, at least, we are in complete agreement. Where we part company is
that in my view the [Eldred v. Ashcroft
decision](https://en.wikipedia.org/wiki/Eldred_v._Ashcroft) (essentially
that copyright terms can be increased indefinitely) was a travesty of
[the original intent of
copyright](https://en.wikipedia.org/wiki/Copyright_Clause), and clearly
intended for the benefit of copyright holders rather than that of
society on general. (I further note in passing that those copyright
holders are only rarely the creative people, but rights-holding
corporations whose creative contribution is negligible.)

You continue:

> \[Journal\] services and competencies need to be supported through a
> business model, however, and in the mixed economy that we have at the
> moment, this means that many journals will continue to need
> subscription and purchase models.

This is a circular argument. It comes down to "we use restrictive
copyright on scholarly works at present, so we therefore need to
continue to do so". In fact, this this is not an argument at all, merely
an assertion. If you want it to stick, you need to demonstrate that the
present "mixed economy" is a good thing --- something that is very far
from evident.

> The alternatives to a sound business model rooted in copyright are in
> my view unsustainable. I worry about government funding, patronage
> from foundations, or funding by selling t-shirts---I am not sure that
> these are viable, consistent or durable. Governments and foundations
> can change their priorities, for example.

If governments and foundations decide to stop funding research, we're
all screwed, and retention of copyright on the papers we're no longer
able to research and write will be the least of our problems. The
reality is that virtually everyone in research is already dependent on
governments and foundations for the 99% of their funding that covers all
the work before the final step of publication. Taking the additional
step of relying on those same sources for the last 1% of funding is
eminently sensible.

On Creative Commons licences, I don't think we have any material
disagreement.

Now we come to the crucial question of copyright terms (already alluded
to via Eldred v. Ashcroft above). You content:

> Copyright law was most likely an important spur for the author or
> publisher to produce and distribute the work \[that is now in the
> public domain\] in the first place.

In principle, I agree --- as of course did the framers of the US
Constitution and other lawmakers that have passed copyright laws. But as
you will well know, [the US's original copyright act of
1790](https://en.wikipedia.org/wiki/Copyright_Act_of_1790), which stated
its purpose as "encouragement of learning", offered a term of 14 years,
with an optional renewal of a further 14 years if the author was still
alive at the end of the initial term. This 14-year was considered quite
sufficient to incentivise the creation of new works. The intent of the
present law seems to be that authors who have been dead for 70 years
still need to receive royalties for their works, and in the absence of
such royalties would not have created in the first place. This is
self-evident nonsense. No author in the history of the world every said
"I would have written a novel if I'd continued to receive royalties
until 70 years after my death, but since royalties will only last 28
years I'm not going to bother".

But --- and this can't be stated strongly enough --- even if there
*were* some justification for the present ridiculous copyright terms in
the area of creative works, it would still say *nothing whatsoever*
about the need to copyright scientific writing. No scientific researcher
ever wrote a paper who would not have written it in the absence of
copyright. That's what we're talking about here. One of the tragedies of
copyright is that it's been extruded from a domain where it has some
legitimate purpose into a domain where it has none.

The Budapest Open Access Initiative [said it best and most
clearly](http://legacy.earlham.edu/~peters/fos/boaifaq.htm#openaccess):
"**the only role for copyright in this domain \[scholarly research\]
should be to give authors control over the integrity of their work and
the right to be properly acknowledged and cited**". (And several of the
BOAI signatories have [expressed
regret](http://svpow.com/2012/04/28/sv-pow-is-now-finally-open-access/#comment-17315)
over even the controlling-integrity-of-the-work part of this.)

------------------------------------------------------------------------

 

See also [David Roberts'
response](http://svpow.com/2015/05/07/copyright-from-the-lens-of-reality/#comment-119102)
to Seeley's posting.


In response to my post Copyright from the lens of reality and other rebuttals of his original post, Elseviers General Counsel Mark Seeley has provided a lengthy comment. Here’s my response (also posted as a comment on the original article, but I’m waiting for it to be moderated.)    Hi, Mark, thanks for engaging. You write:  Here, at least, we are in complete agreement.

A followup on Elsevier’s defence of scholarly copyright

This post is a response to *[Copyright from the lens of a lawyer (and
poet)](http://www.elsevier.com/connect/copyright-from-the-lens-of-a-lawyer-and-poet)*,
posted a couple of days ago by Elsevier's General Counsel, Mark Seeley.
Yes, I am a slave to [SIWOTI
syndrome](http://www.urbandictionary.com/define.php?term=SIWOTI). No, I
shouldn't be wasting my time responding to this. Yes, I ought to be
working on that exciting new manuscript that we SV-POW!er Rangers have
up and running. But but but ... I can't just let this go.

[![duty_calls](https://svpow.files.wordpress.com/2015/05/duty_calls.png?w=300&h=330){.aligncenter
.size-full .wp-image-11917 loading="lazy" attachment-id="11917"
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orig-size="300,330" comments-opened="1"
image-meta="{\"aperture\":\"0\",\"credit\":\"\",\"camera\":\"\",\"caption\":\"\",\"created_timestamp\":\"0\",\"copyright\":\"\",\"focal_length\":\"0\",\"iso\":\"0\",\"shutter_speed\":\"0\",\"title\":\"\",\"orientation\":\"0\"}"
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sizes="(max-width: 300px) 100vw, 300px"}](https://svpow.files.wordpress.com/2015/05/duty_calls.png)

*Copyright from the lens of a lawyer (and poet)* is a defence of
Elsevier's practice of having copyright encumber scientific publishing.
I tried to read it in the name of fairness. It didn't go well. The very
first sentence is wrong:

> It is often said that copyright law is about a balance of interests
> and communities, creators and users, and ultimately society as a
> whole.

No. Copyright is not a balance between competing interests; [it's a
bargain that society
makes](https://www.gnu.org/philosophy/misinterpreting-copyright.html).
We, the people, give up some rights in exchange for incentivising
creative people to make new work, *because* that new work is of value to
society. To quote [the US constitution's helpful
clause](https://en.wikipedia.org/wiki/Copyright_Clause), copyrights
exist "To promote the Progress of Science and useful Arts" --- *not* for
authors, but for wider society. And *certainly* not of publishers who
[coerce authors to donate
copyright!](http://svpow.com/2012/02/25/today-is-copyright-transfer-agreement-day/)

(To be fair to Seeley, he did hedge by writing "It is *often said that*
copyright law is about a balance". That is technically true. It *is*
often said; it's just wrong.)

Well, that's three paragraphs on the first sentence of Elsevier's
defence of copyright. I suppose I'd better move on.

> The STM journal publishing sector is constantly adjusting to find the
> right balance between researcher needs and the journal business model,
> as refracted through copyright.

Wrong wrong *wrong*. We don't look for a balance between researchers
needs (i.e. science) and the journal business model. Journals are there
to *serve* science. That's what they're *for*.

Then we have the quote from Mark Fischer:

> I submit that society benefits when the best creative spirits can be
> full-time creators and not part-timers doing whatever else (other than
> writing, composing, painting, etc.) they have to do to pay the rent.

This may be true. But it is *totally* irrelevant to scholarly copyright.
That should hardly need pointing out, but here it is for those hard of
thinking. Scholars make no money from the copyright in the work they do,
because (under the Elsevier model) they hand that copyright over to the
publisher. Their living comes in the form of grants and salaries, not
royalties.

Ready for the next one?

> The alternatives to a copyright-based market for published works and
> other creative works are based on near-medieval concepts of patronage,
> government subsidy \[...\]

Woah! Governments subsidising research and publication is
"near-medieval"? And there we were thinking it was *by far* the most
widespread model. Silly us. We were all near-medieval all this time.

Someone *please* tell me this is a joke.

Moving swiftly on ...

> Loud advocates for "copyright reform" suggest that the copyright
> industries have too much power \[...\] My comparatively contrarian
> view is that this ignores the enormous creative efforts and societal
> benefits that arise from authoring and producing the original creative
> work in the first place: works that identify and enable key scientific
> discoveries, medical treatments, profound insights, and emotionally
> powerful narratives and musical experiences.

Wait, wait. Are we now saying that ... uh, the only reason we get
scientific discoveries and medical treatment because ... er ... because
of copyright? Is that it? That *can't* be it. Can it?

Copyright has *no role* in enabling this. None.

In fact, it's worse than that. The only role of copyright in modern
scholarly publishing is [to *prevent* societal benefits arising from
scientific and medical
research](http://svpow.com/2013/04/29/predatory-publishers-a-real-problem/ "Predatory publishers: a real problem").

The article then wanders off into an (admittedly interesting) history of
Seeley's background as a poet, and as a publisher of literary magazines.
The conclusion of this section is:

> Of course creators and scientists want visibility \[...\] At the very
> least, they'd like to see some benefit and support from their work.
> Copyright law is a way of helping make that happen.

This article continues to baffle. The argument, if you want to dignify
it with that name, seems to be:

- poets like copyright
- =\> we copyright other people's science
- =\> ... [profit!](http://knowyourmeme.com/memes/profit)

Well, that was incoherent. But never mind: finally we come to part of
the article that makes sense:

- There is the "idea-expression" dichotomy --- that copyright protects
  expression but not the fundamental ideas expressed in a copyright
  work.

This is correct, of course. That shouldn't be cause for comment, coming
from a copyright lawyer, but the point needs to be made because [the
last time an Elsevier lawyer
blogged](http://editorsupdate.elsevier.com/issue-40-september-2013/understanding-and-addressing-research-misconduct/),
she [confused plagiarism with copyright
violation](http://svpow.com/2013/09/20/plagiarism-is-nothing-to-do-with-copyright/ "Plagiarism is nothing to do with copyright").
So in that respect, this new blog is a step forward.

But then the article takes a sudden left turn:

> The question of the appropriateness of copyright, or "authors'
> rights," in the academic field, particularly with respect to research
> journal articles, is sometimes controversial. In a way quite similar
> to poets, avant-garde literary writers and, for that matter, legal
> scholars, research academics do not rely directly on income from their
> journal article publishing.

Er, wait, what? So you admit that scholarly authors *do not* benefit
from copyright in their articles? We all agree, then, do we? Then ...
what was the first half of the article supposed to be about?

And in light of this, what on earth are we to make of this:

> There is sometimes a simplistic "repugnance" about the core publishing
> concept that journal publishers request rights from authors and in
> return sell or license those rights to journal subscribers or article
> purchasers.

[Seeley got that much
right!](http://www.scottaaronson.com/writings/journal.html) (Apart from
the mystifyingly snide use of "simplistic" and the inexplicable
scare-quotes.) The question is why he considers this remotely
surprising. Why would anyone *not* find such a system repugnant? (That
was a rhetorical question, but here's the answer anyway: because they
make a massive profit from it. That is the only reason.)

Well, we're into the final stretch. The last paragraph

> Some of the criticism of the involvement of commercial publishing and
> academic research is simply prejudice, in my view;

Yes. Some of us are irrationally prejudiced against a system where,
having laboriously created new knowledge, it's then locked up behind a
paywall. It's like the irrational prejudice some coal-miners have
against the idea of the coal they dig up being immediately buried again.

And finally, this:

> Some members of the academic community \[...\] base their criticism on
> idealism.

Isn't that odd? I have never understood why [some people consider
"idealism" to be a
criticism](http://poynder.blogspot.co.uk/2013/07/joseph-esposito-on-state-of-open-access.html).
I accept it as high praise. People who are not idealists have nothing to
base their pragmatism on. They are pragmatic, sure, but to what end?

So what are we left with? What is Seeley's article actually *about*?
It's very hard to pick out a coherent thread. If there is one, it seems
to be this: copyright is helpful for some artists, so it follows that
scholarly authors should donate their copyright to for-profit
publishers. That is a consequence that, to my mind, does not follow
particularly naturally from the hypothesis.


This post is a response to
<em>
 Copyright from the lens of a lawyer (and poet)
</em>
, posted a couple of days ago by Elsevier’s General Counsel, Mark Seeley. Yes, I am a slave to SIWOTI syndrome. No, I shouldn’t be wasting my time responding to this. Yes, I ought to be working on that exciting new manuscript that we SV-POW!er Rangers have up and running.

Postagens de Rogue Scholar

Another day, another Elsevier power-grab

A followup on Elsevier’s defence of scholarly copyright

Copyright from the lens of reality