[GOAL] Re: Elsevier is taking down papers from Academia.edu

[Couture Marc]

In his reply to Heather Morrison, Jeoren Bosman wrote:

"Do you mean to say that Gold OA articles from Elsevier with a CC-BY license can not be shared without restriction? The exclusive license you mention is not in the fine print"

This issue was raised previously (August 2012) in this forum, but I think it's worth making some relevant distinctions.

There are two licenses involved when one chooses OA with Elsevier, in a (Gold) OA journal or via the Open Access Article program (hybrid OA).

First, upon final submission, the author grants Elsevier an exclusive license to "publish and distribute" the article, and to attach a CC license to it. This contract is solely between Elsevier and the author, and binds the latter, who keeps the copyright but, due to the exclusive character of the license, loses (for the time being) the right to publish and distribute the article. The author presumably keeps the right to adapt it and publish these adaptations (derivative works, translations, etc.).

Then, upon publication, Elsevier attaches a user license to the article, which gives permissions to everybody (including the author). If the licence is CC-BY-NC, for instance, these include non commercial publication and distribution. Thus, the author regains part of the rights which were granted Elsevier in the first place, but Elsevier keeps the commercial publishing and distributing rights.

The situation becomes a little bit weird if the license is CC-BY. Then, anyone may (re)publish the article, even on a commercial basis, so that Elsevier effectively gives away the exclusive rights it has previously obtained from the author.

One may wonder why Elsevier asks exclusive rights in the first place, simply to give them away later? The only right it retains in the case of the CC-BY license is to be able to cease at some time to distribute the article under this license. But, as I pointed out in the above-mentioned discussion, the original CC-BY license would still be in force, and the article could then be republished by the author, or anyone for that purpose. In fact, it could have been republished (or posted on a repository) at any time by anyone: this is what CC-BY entails.

One should note that OA publishers like PLoS and BioMed Central, which use the CC-BY license, don't ask that authors to grant an exclusive license; they only ask them to agree to attach the licence to the article.

Here are relevant excerpts from PLoS and BMC publication conditions:

"Upon submission of an article, its authors are asked to indicate their agreement to abide by an open access Creative Commons Attribution (CC BY) license." http://www.plosone.org/static/policies

"In submitting a research article ('article') to any of the journals published by BioMed Central [...] I agree to the following license agreement: [ terms of the BioMed Central open access license, identical to CC-BY ] " http://www.biomedcentral.com/about/copyright

Marc Couture
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