Update on Elsevier and CC: Advice Needed

I finally heard back from Elsevier regarding my question about CC. Here is their response:

The Creative Commons licence you have sent is unfortunately not acceptable to Elsevier mainly due to the fact it does not give Elsevier the rights it needs and makes no warranty which is something that we must have before we can publish.

They have, however, offered me an alternative licensing agreement. The main difference is that I get to retain the copyright to the article. I'm not sure about the realities of the legal situation, but I'm curious if this means I'll be able to release the article under CC at some point in the future. I've pasted the agreement below. Please read it and respond quickly, because I need to let them know something very soon. The point that worries me most is 2.2, which says the publisher does not recognize my right to post the document to a website or distribute it in any "systematic" way, which seems like a damnably vague term to me. However, I'm thinking that since they've let me retain the copyright, does it matter that the publisher doesn't recognize that right?? Boy, am I confused.

(License agreement removed by request from Elsevier).

Comments

These comments are an outgrowth of my years framing and dealing with contracts in my former, corporate life. When I was a Realtor, I learned one thing about contracts that lawyers often overlook: boilerplate cuts both ways. Trying to cover every possible situation in a contract from the birth of the world to the end of time can lead to opportunities the contract drafters fail to expect, simply because the boilerplate is second nature to them.

For example, 2.2 does make Elsevier the point of distribution for the article and cuts off your setting up alternate forms of distribution. However, clauses 2.3-2.9 set up a progression of uses for the article that cover future needs you may have. The most interesting one in terms of your future use of a CC license is 2.9. When you redo and expand the article into something you would want to post on the web, is it still the same as the print version? Most likely it will be significantly different, and easily fit in the catagory the contract calls "derivative works."

I would agree with Lanette's interpretation and suggestion. However, note that 2.9 says you have the right "To prepare other derivative works." Doesn't say anything about publishing them which makes me wonder if you still have that right under the contract, whether or not you need permission from them.

Also, I think you have hit on one point. Just because the publisher "recognizes the retention of the following rights by the author," might not necessarily mean that any rights that you already have which are not specified in this contract are taken away. So I'd create a derivative work and put it up under CC licensing. Then the question becomes what is a derivative work? Does a text with revisions that is rewritten to be a hypertext (or wikitext) count as a derivative work? Or is it considered the same work, making it subject to some of the other clauses?

The important section is actually at the top in 1. You grant Elsevier the exclusive copyright in the piece, and they in turn grant you specific rights. None of the rights they give you would allow you to grant a license to any other person, other than for the specific purpose of publishing a compilation of your own writings, or (should you develop a derivative work based on the piece) to publish the derivative work. The right to license others to republish the work is reserved to Elsevier in 1.2.

It seems to me that Elsevier are being somewhat disingenuous in suggesting this as a reasonable alternative to CC - it has nothing in common with CC as far as I can see. They get exclusive rights to the piece, you get the right to use it in non-publication settings in your own work, to publish it as part of a collection of your own writings (if that ever happens) - though note that you can't just publish it as part of a collection of your own work online - and the right to publish derivative works you write based on your own article. You can't authorise anyone else to publish, copy or use it.

Granted, I agree with all of your observations, except for the note that "You grant Elsevier the exclusive copyright in the piece." Matt still retains all of the derivative rights which are part of the exclusive copyright holder rights of Title 17, and an important part, IMHO.

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

So, Matt, why not post your pre-print version up online. Invite feedback. Then later on, use that feedback and revise the work such that it is a "derivative work" and publish it under a CC license. In fact, why not present the pre-print version at C&W Online this year? :)

I don't see this contract as making any concession at all with regard to your request for publishing it under a CC license. For one, their explanation that it "does not give Elsevier the rights it needs" is bogus. Of course it does. The CC license doesn't restrict their distribution rights at all. Second, the question about needing a warranty says they (understandably) need you to release them from any possiblity that your work would be libelous or prompt someone to jump off a cliff. There's no reason why you couldn't add that to the CC license.

This contract leaves the copyright with you, which you wanted. But the critical clause is that you grant Elsevier "exclusive" worldwide rights to distribute it as they describe. When they use that term, they essentially have all the rights that copyright would grant, including the right to interfere with your interest in distributing. ("Exclusive" rules your distribution rights out also.) There is the ambiguity about "derivative," so there may be some wiggle room. But I don't see this contract as any kind of concession on their part.

If you're really interested in keeping the copyright and redistributing your work, then tell them to change "exlusive" to "nonexclusive," and they'll have a deal. Elsevier really needs your work more than you need them, in my view, and there are other journals out there that will have your interests more in mind if you decide to take your business elsewhere.

Dave

From the legal code of one of the licenses, making clear that there is no warranty which should suffice. Notice that it's in all caps so that it jumps out from the rest of the legal code; it's clear that they did not read this:

5. Representations, Warranties and Disclaimer

UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES IN WRITING, LICENSOR OFFERS THE WORK AS-IS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE WORK, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, OR THE PRESENCE OF ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SUCH EXCLUSION MAY NOT APPLY TO YOU.

6. Limitation on Liability.

EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THIS LICENSE OR THE USE OF THE WORK, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Now, my question is, where is Matt's warranty from Elsevier, his limitation of liability?

If it's 6 in their contract which is the warranty they want, Matt can still give them that warranty in a contract with Elsevier, can't he? It doesn't necessarily need to be part of the license, does it?

Well, I sent a reply and voiced my concerns (and I pointed out the warranty language in the CC license). I think what may have happened is that they only looked at the "human readable" version and not the in-depth legal version. Let's hope. I think DaveB really hit the nail on the head when he mentioned the word "exclusive." If they'd just take that word out, the problem would be resolved. However, I think they realize what they're dealing with here. If they let me slip through with a CC license, others will follow my example and demand the same. I wouldn't doubt it if I'm not the first that's tried to negotiate with them.

It would seem that the word "exclusive" pretty much renders my copyright useless. I might as well transfer the full copyright if I'm going to agree to that term.

cel4145 is right, I think. The warranty clause wouldn't need to be a part of the CC license but could be an addendum.

Another issue (in Elesevier's favor, I suppose): Since they have to deal with so many contracts and agreements, it is really difficult to tweak them to meet individual demands. It makes following through (on their part) with their end of the bargain difficult since there would be so many variations to worry about and, thus, too much "due diligence." But if they can't afford it, who can?

Well, I finally decided the best thing to do was accept their alternative licensing agreement and take it off this post. I was hoping that they'd say, "Sure, we'd love to do CC! How progressive!", but I can understand why they'd think it might conflict with their business model. I knew when I submitted the article to C&C that it was being handled by Elsevier and could have chosen to submit it elsewhere. Still, I think Dave is right--if enough scholars will ask them about CC and really start making a big deal about it, then they'll have to change. After all, they are here to serve us (we often forget that!!).

Anyway, lesson learned: From now on, I'll be upfront about CC and not even submit to a journal that won't allow me to use it.

Just kinda makes you wish you could tell them

your failed business model is not my problem

--
Mike
http://www.vitia.org/

OK, sorry this is late, but since this issue is still relevant, here's how I see it -- not having been able to read the contract.

Section 106, Title 17, US Code lists the bundle of rights that are included in "copyright." You can read this online, readily available.

The rights protected under US copyright law include these five things:
1. the right to reproduce (copy)
2. The right to prepare derivative works
3. The right to distribute
4. the right to display
5. in the case of sound recordings, the right to perform digitally

What happens in these publishing contracts, is that usually all of these rights are retained by the publisher, not the author. And so, even though the author may have the "copyright," that "right" is completely hollow of meaning. This is common practice in the publishing industry.

Again, not having read the contract I don't know for sure what the situation was in this particular case, but, the above is based on general practices & copyright law.