The Scholarly Clampdown

The hubbub started two weeks ago (6 December) via the blogsphere and twitter and grew into articles in the Chronicle of Higher Education and The Washington Post. The scholarly publisher, Elsevier, had asked to remove final version editions of Elsevier publisher articles posted by scholarly authors to the social media site. In the ensuing backlash, Elsevier released a statement about why the takedown notices were issued, reiterating that takedown notification was an ongoing practice, and providing alternatives for scholars to use for posting articles such as utilizing the final author draft pre-print copy. In the various social media venues where this action was debated and discussed, one statement was made again and again, that the takedowns from ™ were probably just the beginning of takedown notification. Indeed, this week, the University of Calgary received a takedown notification for Elsevier content posted within their domain. Following this announcement, TechCrunch (TC) noted on 19 December that takedown notifications had now been sent to start-ups, Harvard, and individual researchers. Peter Suber followed up on this post by TC with a Google+ posting giving further information regarded the notifications sent to Harvard. In response to these notifications, the full legality of the takedown notifications has been called into question.  As noted by Mike Carroll, Washington College of Law, on the LIBLICENSE  discussion list:

“in the United States, you can’t transfer the exclusive rights under
copyright without signing a written agreement to that effect.  In the
absence of a signed writing, the author retains the exclusive rights and
the publisher is said to have been granted an implied non-exclusive
license to publish.  In the absence of a signed writing, a publisher that
asserts that it owns the copyright in a misleading copyright notice is
itself legally problematic.”

The Association of Research Libraries (ARL) sent a memorandum out to the ARL Directors and this email in turn has been distributed out to ALA-ALCTS leaders. Here is a paraphrase from the ARL memorandum:

–Takedown notices are being sent to the designated DMCA agents at universities accompanied by spreadsheets of the articles that Elsevier claims are infringing. It is recommended that librarians communicate with your campus DMCA agent regarding these notices. Copyright should be respected when the claim of rightsholder is clear, but articles do not need to be removed if the author did not sign a copyright transfer agreement. In the case of these DMCA takedown notices, Elsevier bears the burden of proof that there is a signed agreement by the author(s) of the article transferring their rights to the publisher.–

The question of whether the copyright transfer agreements are really in place for all the takedowns being requested is a very real one.  Academic institutions are not involved in copyright transfer agreements and whether an agreement was signed or not was left up to the authors. In addition, academic institutions do not make any effort to centrally warehouse these agreements as a common practice. Authors often forget to sign these documents or refuse to sign them but see their work published nonetheless. In many cases, authors signed the agreement but did not keep it or forgot about performing that step when submitting their articles. Librarians have realized that this is a very opportune moment to educate faculty on what it means to sign a copyright transfer agreements, suggest alternatives to publishing with Elsevier, as well as capturing their research within library repositories. One response to the takedown notifications has been that librarians are developing online  messages such as this web site from Canadian Academic Research Libraries (CARL).

Lastly, in a comments exchange by Stevan Harnad with Tom Reller on the Elsevier web site, one practice is agreed upon:

December 17, 2013 at 9:05 pm

Stevan Harnad: Tom, I wonder if it would be possible to drop the double-talk and answer a simple question: Do or do not Elsevier authors retain the right to make their peer-reviewed final drafts on their own institutional websites immediately, with no embargo? Just a Yes or No, please… Stevan
December 18, 2013 at 2:36 pm
Tom Reller: Hello Dr. Harnad. I don’t agree with your characterization of our explanation here, but nevertheless as requested, there is a simple answer to your question – yes. Thank you.
December 20, 2013
Stevan Harnad: Tom, thank you. Then I suggest that the institutions of Elsevier authors ignore the Elsevier take-down notices (and also adopt an immediate-deposit mandate that is immune to all publisher take-down notices by requiring immediate deposit, whether or not access to the immediate-deposit is made immediately OA)… Stevan “


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