Early on Sunday morning (21st August 2016), I spotted the following (anonymized) #icanhazpdf request tweet:-

After spotting this, I did indeed find that the publication of this Charles Darwin paper from 1858 is indeed sitting behind a paywall:-

(Thankfully, the person who left the original #icanhazpdf request for the paper found a link to the free version).

Here’s some of the responses to my tweet:-

surely, the copyright is only on the PDF, not on the text… are there ppl retyping noteworthy papers from the past? https://t.co/Hcfd8rg0Ru — Egon Willighⓐgen (@egonwillighagen) August 21, 2016

@openscience This is really not acceptable in 2016, we should get #openscience if we we want to make a better world https://t.co/WhGhUPHA0t — Eduardo Pareja (@eduardopareja) August 21, 2016

@hchaturv @McDawg Ya gotta be kidding! Sadly, I know you’re not. — MU – Peter Shimon (@MU_Peter) August 21, 2016

Now that’s just cheeky. There are reasons why easy discovery of open-access versions matters. https://t.co/Mn1GdRtYtC — Andy Boughton (@occsci) August 21, 2016

@McDawg But seriously, perhaps the continuing copyright protection might encourage Darwin to pursue further work in the arts & sciences 😉 — Dr Simon Wells (@simonwells) August 21, 2016

Thankfully, a quick online search threw up a number of open access copies of this work such as here on the Darwin Online website.

So, should works dating back to that era be out of copyright and sitting in the public domain ? YMMV it would seem.

Some tweets from Copyright Librarian Nancy Sims:-

I can see why ppl are mad that a publisher is paywalling a Darwin article for ridiculous prices. But that -is- how the public domain works. — Nancy Sims (@CopyrightLibn) August 21, 2016

A work being in the public domain doesn’t mean we all have to treat it as open, it means we can all treat it as our own. — Nancy Sims (@CopyrightLibn) August 21, 2016

Most cultural orgs agree that our ethics compel free & open distribution of public domain works. But for-profit publishers of course differ. — Nancy Sims (@CopyrightLibn) August 21, 2016

As gross as a $38 Darwin article feels (& maybe is), if the PD Penguin Classics (https://t.co/KPtwu0q8EE) don’t offend the same way, why? — Nancy Sims (@CopyrightLibn) August 21, 2016

Yep, and can be pretty gross, too, but again how PD works. Many archives charge for “permission” to use PD stuff. https://t.co/QPXhd4qJSw — Nancy Sims (@CopyrightLibn) August 21, 2016

Similar parallel: I license some photos CC BY. There are stock sites that sell them, appropriately labeled as CC BY. It irks, but is legal. — Nancy Sims (@CopyrightLibn) August 21, 2016

So, after being initially surprised that this public domain work is being sold by a publisher (in this case Wiley), they are within their legal rights to do this.

Earlier this year, there was an interesting thread relating to such matters after I posted this tweet:-

What’s the oldest paywalled paper ? Here’s one from 1845 https://t.co/0PkpQUD8hz — ⓪ Grⓐhⓐm Steel (@McDawg) April 19, 2016

This is also linked to this one:-

Probably the oldest paywalled paper I’ve seen. http://t.co/xsUy8Wfvpx – a 5 page paper from 100 years ago. #FFS Publishers — ⓪ Grⓐhⓐm Steel (@McDawg) September 5, 2014

One person however is of the view that this is NOT legal:-

This is illegal. Papers by Charles Darwin are out of copyright & non-OCR scan doesn’t meet “value add” requirements. https://t.co/E28eXj8Uk2 — Andrea Wiggins (@AndreaWiggins) August 21, 2016

Others disagree with that view:-

@AndreaWiggins @McDawg not illegal. They just don’t have an exclusive license; PD means you can sell, give away, whatever. — Phoebe Ayers (@phoebe_ayers) August 21, 2016

Let’s see if Copyright expert Charles Oppenheim will comment:-

Any thoughts on this @CharlesOppenh Is this activity legal or not ? — ⓪ Grⓐhⓐm Steel (@McDawg) August 21, 2016

RESPONSE

It’s out of copyright of course https://t.co/uyCqmIa5T6 — Charles Oppenheim (@CharlesOppenh) August 21, 2016

@McDawg legal yes. Ethically extremely dubious. PR wise a disaster — Charles Oppenheim (@CharlesOppenh) August 21, 2016

@McDawg Selling them is clearly OK. Claiming copyright not at all (but given there isn’t any law repressing copyfraud, it’s hard to correct)

— Alexander Doria (@Dorialexander) August 21, 2016

@AndreaWiggins @HistGeekGirl @McDawg Shabby. They get away with it because their particular form of access is the added value? Just guessing — The Invisible A (@the_invisible_a) August 21, 2016

@McDawg We almost had recently an anti-copyfraud law in France but copyright collectives and cultural industries did their best to remove it — Alexander Doria (@Dorialexander) August 21, 2016

Views of someone associated with a publisher:-

@McDawg @CharlesOppenh It’s legal to do all kinds of things with public domain works, including selling them. Also reposting what you bought mrgunn (@mrgunn) August 21, 201

the_invisible_a @McDawg @HistGeekGirl it seems wrong in principle, even if it may technically be legal. Just shows how messed up laws are.

— Andrea Wiggins (@AndreaWiggins) August 21, 2016

@McDawg @phoebe_ayers think I can see where they’d make defensible value-add claims, but it still seems to violate spirit of public domain. — Andrea Wiggins (@AndreaWiggins) August 21, 2016

@McDawg @phoebe_ayers legally defensible, I mean, but I don’t know whether there’s precedent to clarify “value add”. Not an IP lawyer. 🙂 — Andrea Wiggins (@AndreaWiggins) August 21, 2016

.@McDawg Yep, Wiley (or anyone else) can sell this. And it’s totally legal to download it for free from Sci-Hub 🙂 https://t.co/n8PoI0eUPv — (((Jⓐn Velterop))) (@Villavelius) August 21, 2016

(Jan Velterop implies that he is of the view that it’s legal to download this from Sci-Hub as the work itself is Public Domain)

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