Did Elsevier breach my copyright during peer review?

So a while back, I got in a scrap with Wiley over their breach of my rights as peer reviewer for one of their journals. Essentially, what it boiled down to was a failure to communicate what referees were agreeing to upon acceptance of a peer review, and as a result breaching their personal rights by enforcing certain things without permission or authority to do so (i.e., what we can or cannot do with our referee reports).

The result of this was a discussion with the Editor and the authors, and as a matter of courtesy I did not publish the report online as not all the authors agreed to do so. However, this was a complex decision process and discussion, which should not really have taken place, as things should have been laid out much more clearly prior to any acceptance to review.

Now, I’ve hit the same issue after reviewing for a journal published by Elsevier. Except I’ve been a bit cheeky following the Wiley incident, which has led now to me sending this email just now to the Editor of the journal in question:

Dear XXXX,

I’m just getting in touch about an issue I’m having with this paper that I peer reviewed for you now that it has been published.
I have a Publons account, in order to document my activities as a peer reviewer. I uploaded details of this paper to Publons. However, when I tried to publish the content of the review, as is fully allowed as the rights-holder to that work, I received the following information:

“The publisher requires that you obtain permission from this journal before you sign your name to this review. Please contact your editor.

The publisher requires that you obtain permission from this journal before you publish this review. Please contact your editor.”

I was unaware that by agreeing to review, Elsevier automatically invoked some sort of rights about what I can or cannot do with my review, and without my permission, awareness, or acknowledgement. Can you confirm that this is the case? I believe that this is an error on behalf of the journal, as I don’t recall signing my rights away or agreeing that Elsevier could invoke this sort of thing without my permission. I double checked all of our correspondence too (including some of which was automated), and didn’t receive any information of this sort. Nor can I find any relevant information on the journal or publisher website.
I should also note that if the copyright transfer of my work was automatically implied due to some information on Elsevier’s website somewhere, then I will similarly invoke the information about my peer review activities on my personal website, with exactly the same authority as that by Elsevier:
“Please note that I charge a flat fee of £10,000 for each peer review completed (subject to concessions), which publishers agree to upon my acceptance to review for any journal they publish.”
If this is the case, could you please let me know who I should contact at Elsevier regarding the financial reimbursement. The alternative is that this is simply a mistake and that while Elsevier will have to be more explicit in the future about the rights of referees prior to acceptance of a review invitation, I retain full rights to re-use my work as I intend, which includes publishing the content of the review online. I should note that this confusion is in no way your fault as Editor in this case, and appears to be a higher-level policy issue.
Kind regards,
So, let’s see how this goes. Either Elsevier are in breach of my own copyright, most likely unintentionally, or there has been some sort of mis-understanding in which Elsevier only owe me £10,000 as a result. *sips tea Englishly*

20 thoughts on “Did Elsevier breach my copyright during peer review?

  1. Jon,

    I am not a lawyer, and I don’t know all the details (particularly, how publons works), but from your letter I got an impression that you might misunderstand how copyright works.

    Let’s say you write a book and then sell or give me a copy. You hold the copyright to your book. This means that you can impose certain restrictions on how I use the copy of the book you gave me. For instance, I cannot make and distribute photocopies of your book.

    Now let’s say you lost your original copy of the book, and now mine is the only copy left in the world. Naturally, you would like me to give you back my copy of the book or at least make a copy for you. I am not aware of any law that would compel me to do that — certainly not any copyright-related law. My copy still bears your copyright, and you still can deny me the right to distribute copies of it to others, but you can’t demand it back from me or force me to make a copy.

    From your letter, it sounds like something similar happened to your review and publons. You gave them your review, now you want them to give it back to you so you can publish it (or you want them to publish it — I’m not sure). They don’t need to oblige — at least not under the copyright law.

    Now, the reason/excuse publons gave you (“The publisher requires that you obtain permission from this journal before you publish this review.”) could be anything. It’s as if I said “I’ll give you the copy of your book if you get a permission from my parents.” I don’t see how this makes my parents liable for anything.

    So if you still have the text of your review (or if you can copy/paste or retype it from publons), go ahead and publish it on your website. If Elsevier sues you for copyright infringement, only at that point will it become a question of who owns the copyright in the review.

    To be clear, I do not in any way approve the actions of publons or Elsevier, and you are right to raise this with the editor. I just don’t think your copyright claim is well founded.

    I am also curious how this situation resolves, please keep us posted.

    1. Hey Roman,

      Thanks for your comments on this.

      So this breaks down a little as we’re not dealing with a physical object, but something that is digital and can be copied freely and effortlessly. Nonetheless, I did not ‘give’, at least with my permission or knowledge, them my peer review. If this is the case due to ‘some policy on their website’ or something, then this carries them same weight as the statement on my website. I want to publish my report on Publons, but there is a prohibition on the site imposed by the publisher – as in they are exerting control over what I can [not] do with my work, without prior permission. I can still publish it on my personal website (this one), but would rather have it on Publons because their platform is awesome. Does that make a bit more sense? Sorry if I have communicated this badly in the post!


      1. Jon,

        > Nonetheless, I did not ‘give’, at least with my permission or knowledge, them my peer review.

        If a publisher (through the editor) asks you to write a peer review report, you do so and send it to them, this implies a license from you to use your report for the purposes these reports are typically used (https://en.wikipedia.org/wiki/Implied_license). So you ‘gave’ it to them in the same sense you’d give someone a copy of your book — without ‘giving’ (assigning) them copyright, of course.

        > I want to publish my report on Publons, but there is a prohibition on the site imposed by the publisher – as in they are exerting control over what I can [not] do with my work, without prior permission.

        Again, I don’t know all the details, but your frustration seems to be misplaced. It is Publons who deny you publication on their platform, and they certainly have a right to decide what they publish. Now we (or at least I) don’t know their motivation (i.e. why they built their software to require this permission). It could be because they fear that they would be sued by the publisher. It could be because they want to maintain good relationships with the publisher. It could be anything.

        Imagine if you refused to publish my comment on your blog, for whatever reason. Would you be exerting control over what I can [not] do with my comment? In a certain sense, yes. Would that be in any way illegal? I don’t think so.

        Now suppose it is some Joe who told you not to publish my comment. Whoever I blame for that, still neither of you have done anything illegal.

        1. Roman,

          This is interesting again. So the implication is that all peer review is governed by these implicit licenses? Surely that’s something you think researchers would be aware of, given the extraordinary scale of this if it is at play?!

          Publons are simply following journal/publisher policies – publishers are among their clients, so they wouldn’t want to do anything to antagonise them by potentially being in breach of confidentiality/rights, or by facilitating it.

  2. Depending on the terms of the journal you reviewed for, the review process was probably considered confidential, and trying to publish your review breaches that confidentiality, and the terms you implicitly agreed to by writing your review (see Nature’s terms here: http://www.nature.com/authors/policies/confidentiality.html). The publisher is entitled to consider your breach or confidentiality fairly seriously, as is your institutions ethics committee!

    Publons makes it pretty clear what the rules are for most journals on the journal profile pages too (ie compare PLOS ONE (https://publons.com/journal/70/plos-one) with Nature (https://publons.com/journal/21597/nature)

    As Roman points out this is little to do with copyright but rather the explicit agreement (laid out in their T&Cs) between you and the publisher when you agreed to write a review for them.


    1. Marcus,

      But this is exactly the point – it was done ‘implicitly’, if so, without my permission, knowledge, or consent. Which is why it is ‘implicit’ that Elsevier now owe me £10,000, if this was the case. Different journals also have different policies, and as it says in the letter, I was unable to find any regarding the journal in question here. And, as mentioned, nothing was explicit – there was no ‘By agreeing to perform this review you agree to x, y, and z.’ There was nothing.

  3. From their website:

    “Since peer review is confidential, you also must not share information about the review with anyone without permission from the editors and authors.”


    So the implication is that you enter into an agreement, informally and without your prior knowledge or consent (this information is not shared with you prior to acceptance of a review request), that is then imposed in breach of your rights as the producer of the review. Is that correct? And in that case, Elsevier also must have implicitly agreed to my ‘policy’ in my website, if a balance is to be struck here?

  4. I will be talking to a journalist from “Nature” later today about this case. In a nutshell:

    1. There is an implied licence granted by the peer reviewer to the journal to reproduce the review report (e.g., forwarding it to the article’s author, or summarising it for that author), but there is NO assignment of copyright to the journal. Copyright assignments must always be explicit and in writing.

    2. So there is no question: you own the copyright in your review and can reproduce it as you see fit, and Elsevier can use it for communicating to the article author and for nothing else. However, if Publons has come to some arrangement with Elsevier that it will not reproduce any review for an Elsevier journal, that is something you cannot do anything about (other than publicising the fact). You own the copyright in the review, but cannot force a third party to reproduce it if it doesn’t want to.

    3. Your claim for a fee is interesting, but legally dubious unless you drew the attention of the Elsevier editor to your fee demand on or before you submitted your review. I suspect you did not.

    4. Should a review be kept confidential or not? If your review identifies the submitted paper’s author(s), there may be ethical (and maybe data protection) issues you need to think about. In the case of Elsevier, it says explicitly about keeping reviews confidential, so I don’t see how you can publish the review contents without being in breach of your agreement – and it is an agreement – with Elsevier. I would recommend you never do a review for an Elsevier journal again to avoid the problem in future.

    5. I did think about the question of possible infringement of moral rights, but now that I understand the issue rather more, I don’t think moral rights are relevant.

    1. Hi Charles,

      Thanks for your insight on this. Just to comment on your comments:

      1. I agree.
      2. That makes sense, Publons have to comply with publisher policies as they don’t want to upset their clients/potential clients with these things.
      3. The ‘claim’ of a fee was pre-emptive, in case Elsevier responded with something like ‘But you agreed to the terms on our website implicitly by accepting..’, in which case I could simply say ‘Well then you agreed to mine too.’ We’ll see how that one plays out. They can’t have it both ways.
      4. I think this makes sense, unless the paper becomes published. Once that happens, the authors names are identified anyway, and Publons works by simply using CrossRef DOIs to bring everything together. I would never dream of publishing a review without the paper itself being published, as that’s just not cool.
      5. I think this issue of moral rights is still kinda important. When I had this issue with Wiley, although we ultimately agreed I was ‘right’, I didn’t publish the report in the end as I didn’t get a unanimous vote from the authors to do so after I raised the issue with them and the Editor.

      Cheers! And have fun with the journalist 🙂


  5. Hi Jon,

    I can confirm that Elsevier does not ask or expect peer reviewers to transfer copyright. You wrote the review and you own the copyright in your review.
    However, your question raises a number of fascinating issues, as reflected in this discussion hosted by COPE:
    The posting of reviewer reports of published papers has well-proven benefits, of course, as first shown by BioMedCentral and EMBO, and more recently by you and your colleagues at ScienceOpen and Elsevier’s open peer review pilot, amongst others: https://www.elsevier.com/reviewers-update/story/innovation-in-publishing/is-open-peer-review-the-way-forward.
    The increased transparency and recognition to reviewers have inspired us to greatly expand our pilot and our goal is for reviewer reports to be posted in all Elsevier journals.

    In the meantime, while the majority of Elsevier journals – including
    Palaeogeography, Palaeoclimatology, Palaeoecology- follow single or double-blind review, our overall guidelines reflect that https://www.elsevier.com/reviewers/how-to-conduct-a-review. Authors publishing in such journals may well expect the reviewer confidentiality that applied before publication to continue after publication. So I would expect that most Editors would want to check with the authors first before a review appears publicly, just in case there are any sensitivities e.g. your review covers content from an earlier version of the paper that isn’t publicly available.

    All the best,

    1. Hi Catriona,

      Thanks for taking the time to comment!

      I was aware of the guidelines, but as you say, confidentiality is just something that is ‘expected’ or implied, not anything that’s actually ever agreed to. Simply saying ‘but it says so on our website’ is exactly why I put the thing about £10,000 on my site – it carries the same amount of weight in this argument. Therefore if I have implicitly agreed to a confidential process without signing anything, Elsevier have also agreed to my £10,000 reviewer fee. The same sorts of considerations must apply both ways in this case, and at the very least these things should be made much more explicit prior to any acceptance to review in the future. And, as Charles mentions above, this does not give Elsevier the authority to inhibit my personal use of my work either via Publons or anywhere else.



      1. Jon, if you had permission from the author to post it, then it’s not against Elsevier’s policy. If someone at Publons told you so, they misspoke. Perhaps you should follow up with them?

        1. It wasn’t someone at Publons – it’s an automatic feature of the platform as a function of Elsevier’s policy. The implicit restriction passes through as an explicit policy. I spoke with Publons about this during the Wiley incident, and the resolution was to follow it up with the Editor, which I have done in this case and that one too!

  6. I have a similar problem, but I haven’t been able to raise a response from the high-ups in the journal that I reviewed for, and wish to publish my review. I even have permission from the authors (I signed my report, so they knew who I was, already). The journal is that of the Australian Mathematical Society, which is published by CUP, so it’s hard to know who to push.

    1. I would just contact everyone at the journal until you receive a response. Which reminds me, I need to poke Elsevier again about this..

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