Copyright

I think there has been a vast overstatement and overselling of the alleged need for -- and urgency of -- re-use rights (CC-BY) (or NC) for peer reviewed research journal articles today, especially in view of the fact that CC-BY (or NC) is much harder to get journal publishers to agree to, today, and not all (perhaps not even most) authors and disciplines need or want it, today.

Consider that if a subscription publisher were to allow CC-BY, that would authorize any 3rd-party rival publisher to free-ride with impunity on the publisher's investment, selling the publisher's contents at a cut-rate from the very day of publication. So asking subscription publishers for unembargoed Green Libre OA (CC-BY, or CC-BY NC, etc.) rather than just unembargoed Green Gratis OA is tantamount to asking them to commit immediate suicide, hence likely to provoke them instead to adopt as long a protective embargo as possible against Green Libre OA.

Re-use rights (Libre OA) -- just like Gold OA -- will come, after Green Gratis OA, where needed and wanted. But neither is even remotely as important or urgent as (Gratis) OA itself today: free online access to the journal articles of which 80% are accessible only to subscribers today.

Gratis OA means free online access, reading, linking, downloading, printing, storing, and data-mining locally, as well as harvesting, inverting and indexing of navigation and research by Google Scholar and countless other search engines).

Green Gratis OA is the solution to providing the missing 80% of OA. All that's needed is to mandate it.

But insisting now on Libre OA (further re-use rights), just like insisting now on Gold OA, is simply demanding still more, and thereby raising higher the obstacles to getting the 80% Green OA (Gratis) that is already within reach and has been for years through Green (Gratis) OA self-archiving mandates by researchers' institutions and funders (as so brilliantly described and spear-headed by Professor Bernard Rentier in his recent GOAL posting).

And all in the name of further benefits that are not even remotely as important and urgent as Green Gratis OA.

Consider that there is a practical contradiction between trying to expand Green OA mandates from funders and institutions to 100% and insisting on Libre OA (e.g., CC-BY, etc.) today.  

For not one of the world's Green OA mandates, whether funder of institutional, is a Libre OA mandate -- and with good reason: Green OA mandates are a research-community adaptation to the publisher status quo: 

Publication is still largely subscription-based today, and copyright is mostly transferred to publishers (rather than being non-exclusively licensed, as we of course want it to be, eventually). That's the status quo. 

And self-archiving of the author's refereed final draft is the research community's own self-help response, within this publisher status quo.

The result is Green Gratis OA; that is the thing that the research community needs the most today. That is what maximizes research access, uptake, usage, applications and impact by making it accessible to all users, not just those whose institutions can afford subscription access. But Green Gratis OA is only at about 20% worldwide today, because so few institutions and funders have as yet mandated it.

Opening up the Libre OA front, alongside the Gold OA front, instead of pushing full-speed on the all-important Green Gratis OA-mandating front toward 100% Green Gratis OA is simply adding further obstacles, handicaps and distractions to the Green Gratis OA front -- as well as providing an unscalable model that most other countries will not want (or be able) to follow today.

And the most important thing to keep in mind is that these further obstacles, handicaps and distractions are nowhere near as important and urgent as (Green, Gratis) OA itself. (Not to mention that the fastest and surest way to get eventual Libre OA as well as Gold OA is to first mandate Green Gratis OA universally.)

I think it would be practical, realistic and helpful to make it clear to all OA advocates that the primary, immediate, and already fully reachable target is 100% Green Gratis OA, and that the re-use rights and the Gold OA can and will come later, after this urgent primary goal is reached, but will only make it gratuitously harder to reach if they are needlessly insisted upon in advance.

A word to the wise.

I close by re-quoting the spot-on and timely words of Professor Rentier in his recent GOAL posting [emphasis added]:

"...I have mandated deposit in my University's repository (ORBi) and since there is no way I can force my colleagues to "obey", I have just made official a procedure whereby the only publication list being considered in a Liege University member's C.V. is the one produced by ORBi. Simple. This explains ORBi's success... Of course, this does not solve the question of immediate open access. Only those papers published by publishers who agree upon immediate access on line are immediately accessible on line. The others must be immediately deposited but cannot be seen fully upon publication. They must await the end of the publishing house's embargo period, 6 months for most of them. Meanwhile, the title and metadata appear on any search engine by keywords, authors' names, University, etc. and a single click sends [an immediate eprint] request to the author. There are a few minutes to a few hours before the final author version is sent: it depends on the author's availability and response time. Usually less that 24 hours unless the author is on a weeklong trek in Nepal.... Compliance... has been very high, at first because of the soft but firm coercive top down pressure, but nowadays because our authors have fully realised the very much larger readership with which OA provides them and the citation advantage from which they benefit. My most reluctant colleagues have now become ORBi's best advocates. I consider this a success. OA's worst enemy out there is OA [fundamentalism]…"

Integrating Institutional and Funder Open Access Mandates: Belgian Model

The Liège ORBi model: Mandatory policy without rights retention but linked to assessment procedures

EOS: New worldwide organization for universities promoting open access

Repositories: Institutional, Thematic, or Central?

Liege Mandate Definitely Immediate-Deposit/Optional-Access

Stevan Harnad

---

Comments invited -- but please don't post them here but in the Higher EDucation Development Association (HEDDA) blog.

---

In the Hedda Blog, Chris Maloney (Contractor for PubMed Central) asked:

"Can/do journal publishers put stipulations on authors, as a condition of publication, that their self-archiving have an embargo period (i.e. not be available for a period such as six months)?"

Yes they can and do. See SHERPA Romeo.

But over 60% of them (including most of the top journal publishers) do not, and instead endorse immediate "green" OA self-archiving of authors' refereed final drafts, in the author's institutional repository (IR) immediately upon acceptance for publication.

For the minority of journals that still do embargo OA, there is nevertheless a work-around: The Immediate-Deposit/Optional-Access (ID/OA) mandate still requires immediate deposit, but allows the author to set access to the deposit as Closed Access instead of OA during the embargo. Would-be users web-wide can still access the bibliographic metadata, and can then use the IR's automated "email eprint request" Button to request a copy.

(This is not OA but "Almost-OA" and can tide over researcher needs while hastening the natural, inevitable and well-deserved demise of the remaining publisher embargoes.)

Sale, A., Couture, M., Rodrigues, E., Carr, L. and Harnad, S. (2012) Open Access Mandates and the "Fair Dealing" Button. In: Dynamic Fair Dealing: Creating Canadian Culture Online (Rosemary J. Coombe & Darren Wershler, Eds.)

ABSTRACT: We describe the "Fair Dealing Button," a feature designed for authors who have deposited their papers in an Open Access Institutional Repository but have deposited them as "Closed Access" (meaning only the metadata are visible and retrievable, not the full eprint) rather than Open Access. The Button allows individual users to request and authors to provide a single eprint via semi-automated email. The purpose of the Button is to tide over research usage needs during any publisher embargo on Open Access and, more importantly, to make it possible for institutions to adopt the "Immediate-Deposit/Optional-Access" Mandate, without exceptions or opt-outs, instead of a mandate that allows delayed deposit or deposit waivers, depending on publisher permissions or embargoes (or no mandate at all). This is only "Almost-Open Access," but in facilitating exception-free immediate-deposit mandates it will accelerate the advent of universal Open Access.

---

Comments invited -- but please don't post them here but in the Higher EDucation Development Association (HEDDA) blog.

---

---

SUMMARY: To give authors the exceedingly bad advice that what they should do first, if they wish to provide Open Access to their articles, is to attempt to modify their copyright agreements (along the lines of the SPARC author addendum) one-by-one is not only to give advice that is doomed to fail in many instances (and not even to be tried in most), but it is to divert attention and efforts from the real solution. What OA advocates worldwide should be using all their energy to bring about is the adoption of immediate-deposit mandates by their institutions (and funders). That done, it no longer matters that one-by-one copyright modification efforts are a drop in the bucket, because the deposit mandate will be doing the real work, providing Open Access (to the majority of an institution's annual articles, and Almost-Open-Access to the rest) and setting the right example for other institutions. Once immediate deposit mandates scale up globally, publisher copyright contracts will adapt to the new reality as a matter of natural course. (For tried-and-tested policy guidance, please turn to EnablingOpenScholarship.)

---

On Fri, Jan 14, 2011, Andrew Stancliffe wrote on liblicense:

"The UCLA Library is working with a faculty member here who has submitted an article to the journal Sleep. We advised the author to modify the author's agreement, using the SPARC author's addendum, to retain copyright. The author received a reply from Sleep, which rejected the change, stating "I have never heard of any journal doing this.  Sleep would not publish any paper it does not hold copyright to."

"We're curious to know if anyone on the list has negotiated with Sleep in the past and what their experiences have been.  Thanks for any input you can give us."

This is the royal road to decades and decades more of lost research access, progress and impact. 

It is the equivalent of trying to combat smoking by trying to persuade smokers to write individually to tobacco companies to ask them to manufacture fewer cigarettes.

(1) The goal is to provide Open Access, not to modify author copyright agreements.

(2) The SPARC author addendum is much too strong in any case: gratuitously and self-defeatingly strong:

(3) No publisher permission is required by authors to deposit the full-text of their refereed, revised, accepted final drafts in their own institutional repositories, immediately upon acceptance for publication.

(4) The bibliographic metadata (author, date, title, journal, etc.) are in any case immediately accessible to all would-be users.

(5) The majority of journals (including just about all the top journals) have already formally endorsed setting access to the full text of the deposit as Open Access immediately upon deposit.

(6) If, for the remaining minority of journals, the author wishes to observe a publisher embargo on Open Access, access to the deposit full-text can be set to "Closed Access" rather than "Open Access" during the embargo, and the author can email eprints to would-be users on request.

(7) This provides immediate Open Access to the majority of deposits plus "Almost Open Access" to the remaining minority, thereby providing for all immediate research usage needs and ensuring -- once it is being done universally -- that embargoes will die their natural, well-deserved deaths soon thereafter, under the growing pressure from the universal deposits, the palpable benefits of the majority Open Access and the contrasting anomaly of the minority of embargoed access and the needless inconvenience and delay of individual email eprint requests.

(8) But the best author strategy of all is to make all deposits immediately Open Access today, and to decide whether or not to Close Access to any one of them only if and when they ever receive a take-down notice from the publisher. 

Authors will not receive publisher take-down notices because publishers (unlike authors, and librarians) already know very well today that trying to do that would soon lose them their authorships, who would migrate to the majority of journals that endorse immediate Open Access deposit. This has already proved true for the two decades'-worth of successful and unchallenged "don't-ask" deposits that we already have behind us -- at least two million of them, by computer scientists on their institutional websites and by physicists in Arxiv. With universal deposit (and especially with universal institutional and funder mandates to deposit) the incentive for publishers to request take-down is even lower.

So, to repeat: giving authors the exceedingly bad advice that what they should do first, if they wish to provide Open Access to their articles, is to attempt to modify their copyright agreements (along the lines of the SPARC author addendum) one-by-one is not only advice that is doomed to fail in many instances (and not even to be tried in most), but it is diverting attention and efforts from the real solution.

Making the attempt to modify the author's copyright agreement can be quasi-mandated (as it is by Harvard, MIT and a few other institutions following their example), by reserving copyright in a blanket default institutional contract predating and hence mooting all subsequent contracts with publishers, but only at the cost of allowing the author the option to opt out of the prior blanket institutional copyright reservation contract in the face of -- or in anticipation of -- non-acceptance by the publisher.

It is for this reason that Harvard has (sensibly) adopted a simultaneous immediate-deposit mandate -- with no opt-out option -- alongside its copyright reservation policy. But a little reflection on this will make it apparent that the real work is being done by the immediate-deposit mandate, and the attempt to modify the copyright agreement with the author continues to be just a hit-or-miss affair, even if beefed up by the option of institutional contractual backing.

University of California has only the blanket institutional copyright reservation policy, with the opt-out option, and no accompanying deposit mandate without opt-out; nor does UCLA have a deposit mandate of its own. 

Hence these one-by-one attempts, like UCLA's, to modify copyright are not only a hit-or-miss affair, but a colossal and quixotic strategic error, and a doomed and disheartening waste of precious time (and research uptake and impact). 

What OA advocates worldwide should be using all their energy to bring about is the adoption of an immediate-deposit mandate. That done, it no longer matters that one-by-one copyright modification efforts are a drop in the bucket, because the deposit mandate will be doing the real work, providing Open Access (to the majority of an institution's annual articles, and Almost-Open-Access to the rest) and setting the right example for other institutions. Once immediate deposit mandates scale up globally, publisher copyright contracts will adapt to the new reality as a matter of natural course.

But if we instead keep pinning our hopes and efforts on one-by-one, hit-and-miss attempts by authors to modify copyright contracts, the ride is destined to be a long and possibly endless one. 

It is almost as amazing as it is appalling how long the academic community keeps heading off in all directions except the right one when it comes to Open Access: publishing reform ("gold OA"), copyright reform, peer review reform -- every road but the very one that the online era has opened up for us, the road that made Open Access itself conceivable, possible, and immediately reachable: universal author self-archiving and self-archiving mandates by their institutions and funders.

No; encouraging 1000 flowers to bloom has not helped: Instead, it has distracted and diverted us from the swift and certain solution; let's hope it does not keep it up for another 1000 days, months, or years...

For tried-and-tested policy guidance, please turn to EnablingOpenScholarship. The wait has been long enough already. 

Stevan Harnad
American Scientist Open Access Forum

Frankel & Nestor's helpful advice to authors about rights retention is very well-informed and valuable, except for this:

"Finally, we must be careful to distinguish between a license mandate and a deposit mandate. Whereas a licensewhether exclusive or nonexclusivetransfers some amount of rights in the article, a deposit mandate merely allows for (or requires) a physical copy of the article to be given to the institution. Simply handing over a physical copy of an article, or draft of that article, is not sufficient under copyright law to constitute a grant of any rights, as physical possession of an article does not give the owner of that copy any copyright rights in work embodied in the copy.

"Deposit mandates certainly are useful for institutions to retain the knowledge and scholarship of its faculty members. Indeed, some journals already permit institutional depositories. But such permissions do not address the increasing loss of knowledge in the academic community caused by the ever- increasing costs of journal subscriptions and the inability for academic institutions to keep up with shouldering the burden of those costs. The open access policy goes beyond a simple university depositorylimited in size, scope, and, most universal scope and accessibility. By combining the nonexclusive license discussed in this paper with a deposit policy, an institution can create open access."

Simon J. Frankel and Shannon M. Nestor (2010) Opening the Door: How Faculty Authors Can Implement an Open Access Policy at Their Institutions.

(1) Most authors are not providing Open Access (OA) to their refereed research output at all today. (Only 20% are providing it.)

(2) OA Mandates are coming, but still extremely slowly.

(3) It is much harder to mandate more than less.

(4) A license mandate is much more than a deposit mandate.

(5) The majority of journals (60%+) already endorse immediate Open Access self-archiving of the author's refereed final draft.

(6) A deposit mandate will immediately provide OA to 60%+ instead of just 20% of refereed research.

(7) The repository's eprint-request button can provide almost-OA to all the rest for the time being.

(8) So what is urgently needed is at least a deposit mandate, today.

(9) Re-use rights are not urgent, and will be much easier to get once we already have universally mandated OA.

The Gratis Green OA self-archiving door is open already: All institutions and funders need do is mandate entry. Rights retention and Libre OA can come later.

Harnad, S. (2008) Waking OA’s “Slumbering Giant”: The University's Mandate To Mandate Open Access. New Review of Information Networking 14(1): 51 - 68

Harnad, S. (2008) Which Green OA Mandate Is Optimal? Open Access Archivangelism December 7 2008.

Harnad, S. (2010) The Immediate Practical Implication of the Houghton Report: Provide Green Open Access Now. Prometheus 28 (1). pp. 55-59.

Sale, A., Couture, M., Rodrigues, E., Carr, L. and Harnad, S. (2010) Open Access Mandates and the "Fair Dealing" Button. In: Dynamic Fair Dealing: Creating Canadian Culture Online (Rosemary J. Coombe & Darren Wershler, Eds.)

Suber, Peter (2008) Green/gold OA and gratis/libre OA. Open Access News August 2, 2008

---

SUMMARY: Professor Shavell's paper on copyright abolition conflates (i) books with journal articles, (ii) Gold OA with Green OA, and (iii) the problem of Open Access with the problem of copyright reform. Although copyright reservation by authors and copyright reform are always welcome, they are unnecessary for universal Green OA; and needlessly suggesting that copyright reservation/reform is or ought to be made a prerequisite for OA simply slows down progress toward reaching the universal Green OA that is already fully within the global research community's grasp.

---

Critique of:

Shavell, Steven (2009) Should Copyright Of Academic Works Be Abolished?

[S. Shavell's Summary] "The conventional rationale for copyright of written works, that copyright is needed to foster their creation, is seemingly of limited applicability to the academic domain. For in a world without copyright of academic writing, academics would still benefit from publishing in the major way that they do now, namely, from gaining scholarly esteem. Yet publishers would presumably have to impose fees on authors, because publishers would not be able to profit from reader charges. If these publication fees would be borne by academics, their incentives to publish would be reduced. But if the publication fees would usually be paid by universities or grantors, the motive of academics to publish would be unlikely to decrease (and could actually increase) -- suggesting that ending academic copyright would be socially desirable in view of the broad benefits of a copyright-free world. If so, the demise of academic copyright should be achieved by a change in law, for the "open access" movement that effectively seeks this objective without modification of the law faces fundamental difficulties."

---

[Note: Professor Shavell's posting as well as the critique below are unrefereed, unpublished drafts ("preprints"). They have both been posted publicly, but they do not constitute formal "publications" in the academic sense, let alone peer-reviewed publications. In particular, Professor Shavell's working draft was posted in order to solicit comments, on the basis of which it is likely to be revised before being submitted for publication. These unpublished postings can, however, be referred to and cited, as long as the user is careful to make it clear that they are prepublication working drafts rather than lapidary refereed postprints that have been accepted for publication by a journal. This is all part of evolving scholarly practice in the online era.]

---

Professor Shavell's paper contains useful analysis and advice about scholarly/scientific book publication, economics and copyright in the digital era, but on the subject of refereed journal articles and open access it contains too many profound misunderstandings to be useful.

(1) What are "academic works"? Shavell largely conflates the problem of book access/economics/copyright and journal-article access/economics/copyright, as well as their respective solutions.

The book and article problems are far from the same, and hence neither are their solutions. (And even among books, the boundary between trade books and "academic" books is fuzzy; nor is an esoteric scholarly monograph the same sort of thing as a textbook, a handbook, or a popularization for the general public by a scholar, although they are all "academic.")

Books are single items, bought one-time by individuals and institutions -- journal articles are parts of serials, bought as annual subscriptions, mostly by institutions.

Books are still largely preferred by users in analog form, not digital-only -- journal articles are increasingly sought and used in digital form, for onscreen use or local storage and print-off. (OA only concerns online access.)

Print-on paper books still cost a lot of money to produce -- digital journal article-texts are generated by their authors. In the online age, journals need only provide peer review and certification (by the journal's title and track-record): no print edition, production or distribution are necessary.

It is not clear that for most or even many authors of "academic works" (whatever that means) the sole "benefit" sought is scholarly uptake and impact ("scholarly esteem"), rather than also the hope of some royalty revenue -- whereas it is certain that all journal article authors, without a single exception, do indeed seek solely scholarly uptake and impact and nothing else.

(2) What is Open Access? Shavell largely conflates fee-based Gold OA (journal publishing) and Green OA (journal-article self-archiving), focusing only on the former, and stressing the deterrent effect of having to pay publishing fees.

(3) Why Pay Pre-Emptive Gold OA Fees? Gold OA publishing fees are certainly a deterrent today. But no publishing fees need be paid for Green OA while institutional subscriptions are still paying the costs of journal publishing.

If and when universal Green OA -- generated by universal Green OA self-archiving mandates from institutions (and funders) worldwide -- should eventually cause institutions to cancel their journal subscriptions, rendering subscriptions no longer a sustainable way of recovering the costs of journal publishing, journals will cut costs, phase out inessential products and services that are currently co-bundled into subscriptions, and downsize to just providing and certifying peer review, its much lower costs paid for on the fee-based Gold OA cost-recovery model out of the institutional windfall subscription cancellation savings.

Shavell instead seems to think that OA would somehow need to be paid for right now, by institutions and funders, out of (unspecified) Gold OA funds, even though subscriptions are still paying for publication today, and even though the pressing need is for OA itself, not for the money to pay for fee-based Gold OA publishing.

Universal OA can be provided by mandating Green OA today. There is no need whatsoever for any extra funds to pay for Gold OA.

(4) Why/How is OA a Copyright Issue at all? Shavell largely conflates the issue of copyright reform with the issue of Open Access, suggesting that the way to provide OA is to abolish copyright.

This is not only incorrect and unnecessary, but redirecting the concerted global efforts that are needed to universalize Green OA Mandates toward copyright reform or abolition will again just delay and deter progress towards universal Green OA.

Green OA can be (and is being) mandated without any need to abolish copyright (nor to find extra money to pay Gold OA fees).

Shavell seems to be unaware that over 90% of journals already endorse Green OA self-archiving in some form, 63% endorsing Green OA self-archiving of the refereed final draft immediately upon acceptance for publication. That means at least 63% Immediate Green OA is already potentially available, if mandated (in contrast to the 15% [not 5%] actual Green OA that is being provided spontaneously, i.e., unmandated, today).

And for the remaining 37% of journal articles, the Green OA mandates can require them to be likewise deposited immediately, as "Closed Access" instead of Open Access during any publisher access embargo, with the Institutional Repository's "email eprint request" Button tiding over research usage needs by providing "Almost OA" during any embargo.

This universally mandated 63% OA + 37% Almost-OA will not only provide almost all the research usage and impact that 100% OA will, but it will also hasten the well-deserved death of publisher access embargoes, under the mounting pressure for 100% OA, once the worldwide research community has at last had a taste of 63% OA + 37% Almost-OA (compared to the unmandated c. 15% OA -- not 4.6% as in Shavell's citation -- that we all have now).

In conclusion: Professor Shavell's paper on copyright abolition conflates (i) books with journal articles, (ii) Gold OA with Green OA, and (iii) the problem of Open Access with the problem of copyright reform. Although copyright reservation by authors and copyright reform are all always welcome, they are unnecessary for universal Green OA; and needlessly suggesting that copyright reservation/reform is or ought to be made a prerequisite for OA simply slows down progress toward reaching the universal Green OA that is already fully within the global research community's grasp.

Stevan Harnad
American Scientist Open Access Forum

SH: "[T]here is nothing either defensible or enforceable that a publisher can do or say to prevent a researcher from personally distributing individual copies of his own (published) research findings to individual researchers, for research purposes, in any form he wishes, analog or digital, at any time. That is what researchers have been doing for many decades, whether or not their right to do so was formally enshrined in a publisher's 'author-re-use' document."

RQJ: "This discussion strikes at the heart of green OA implementation. Among other things, it's why we have mandates."

Actually that's not correct. What I was referring to above -- authors mailing an individual analog reprint or emailing an individual digital eprint to an individual requester for research purposes -- predates both OA (Green and Gold) and (Green) OA mandates.

The only connection with Green OA mandates is that email eprint requests for Closed Access deposits whose metadata are openly accessible allow users to request -- and authors to provide -- individual one-on-one "Almost OA" during any OA embargo period: That way Green OA mandates can require deposit of the final refereed draft immediately upon acceptance, with no exceptions or opt-outs, no matter how foolish a copyright transfer agreement the author may have signed.

If a Green OA mandate does not require immediate deposit, then it is completely at the mercy of publisher OA embargoes: The author deposits only if and when the publisher stipulates that he may deposit, because all deposits are OA. If, instead, immediate deposits are required in every case, without exception, but where OA is publisher-embargoed the deposit may instead be made Closed Access during the embargo, rather than OA, then the email eprint request button allows the author to provide "Almost OA" on an individual case by case basis for the Closed Access articles during the embargo.

But if the mandate instead requires deposit only after the publisher embargo has elapsed, that means the only access during the embargo period is subscriber-access. That means a great loss of potential research usage and impact.

RQJ: "I believe Harnad is likely incorrect as a matter of law (at least in the US), but ultimately this may end up as a court case that gives us more explicit guidance.

If researchers sending individual reprints and eprints to individual requesters for research purposes has not gone to court for over a half century, it is difficult to imagine why someone would think it will go to court now: Publishers suddenly begin suing their authors for fulfilling reprint requests?

RQJ: "Note that "research findings" (which are the stuff of patent or academic integrity if protected at all) are very different from their expression in text, which is what is transferred through the copyright agreement."

We are not talking about research findings, we are talking about copies of verbatim (published) reports of research findings: sending them to individual requesters, as scholars and scientists have been doing for over half a century (since at least the launch of Eugene Garfield's "Current Contents" and "Request-a-print" cards):

Swales, J. (1988), Language and scientific communication. The case of the reprint request. Scientometrics 13: 93–101. "This paper reports on a study of Reprint Requests (RRs). It is estimated that tens of millions of RRs are mailed each year, most being triggered by Current Contents..."

RQJ: "Note also that "what researchers have been doing for many decades" is disputable -- arguably what researchers did anteXerox was distribute the 100 or so offprints of their article that they got as part of their Faustian bargains."

They could also mail out copies of their revised, accepted final drafts.

And whether or not any of that was "disputable" before xerox, it certainly wasn't ever contested -- neither with the onset of the xerox era, nor with the onset of the email era.

RQJ: "Note also that courts would be under strong conflicting pressures if a case like this ever actually got heard. On the one hand, Harnad's point is good that courts would want to identify ways to find for those sympathetic scholarly authors. On another, anyone who has been following the RIAA (or remembers Eldred) knows that some of the courts also have tried to find in favor of the owners of the copyrighted works and in favor of sanctity of contract."

Notice that in all other cases but this very special one (refereed research journal articles) both author and publisher were allied on the same side of the copyright/access divide: both wanted to protect access to their (joint) product (and revenues) from piracy by third parties.

In stark contrast, in this one anomalous case -- author give-away research, written purely for maximal uptake, usage and impact, not at all for royalty revenue -- the publisher and the author are on opposite sides of the copyright/access divide, and publishers would not be suing pirates, but the authors of their own works (and not "works for hire!").

I would say that the differences from all prior cases are radical enough here to safely conclude that all prior bets are off, insofar as citing precedents and analogies are concerned.

And I would say that the de facto uncontested practices of millions of scholars and scientists annually for decades since well into both the photocopy and the email eras bear this out.

And although individual reprint/eprint request-fulfillment by authors is definitely not OA (though it is a harbinger of it), the growing clamor for OA today is surely making it all the harder for publishers now suddenly to do an abrupt about-face, endeavoring to contest individual reprint/eprint request-fulfillment by authors after all this time -- and now, of all times!

RQJ: "On a third hand, the institutional employers of the researchers might well try to assert WmfH or other compulsory license theories that trumped the publisher's copyright."

You are thinking here about what institutions (and funders) could do to force the issue insofar as OA is concerned (and I agree, they do have an exceedingly strong hand, and could and should use it if it proves necessary).

But that is not even what we are talking about here: We are just talking about the longstanding pre-OA practice of individual reprint/eprint request-fulfillment by authors, for research purposes...

RQJ: "On a fourth, there's the public interest in "the Progress of Science" and a dearth of good empirical data as to which copyright regimes actually do promote that progress."

All worthy and worthwhile, but probably not necessary, as neither individual reprint/eprint request-fulfillment by authors nor Immediate-Deposit/Optional-Access (ID/OA) mandates are copyright matters:

RQJ: "...Will it ever go to court? Maybe not. The publishers might win their particular case but lose the war by triggering a revolution."

What is the "it" that you are wondering about? Over 90% of journals are already Green on immediate, unembargoed OA self-archiving in some form (63% for the refereed postprint, a further 32% for the unrefereed preprint).

So are you wondering whether the non-Green journals will try to sue their authors? No, they won't. At most, some may try to send them take-down notices, which their authors will either choose to honor or ignore.

But that isn't even what we are talking about here: We are talking about individual reprint/eprint request-fulfillment by authors, for research purposes: Wouldn't the time for authors to worry about that have been 50 years ago, before they began doing it, rather than now, when they and their children and grand-children have already been doing it with impunity for generations?

Stevan Harnad
American Scientist Open Access Forum

See also:
Definitive Answer: II
and
The Definitive Answer: Deposit All Final Drafts, Immediately Upon Acceptance for Publication

---

Colin Smith [CS], Repository Manager, Open University, wrote, in JISC-Repositories:

CS: "[D]espite what is written on [Wiley/Blackwell's] website, I remain concerned by some other information I received, and by the wording on their copyright form, which appears to contradict the information on their website."

Colin, please let me preface my reply with a reaffirmation of the fact that I think your efforts on behalf of OA and filling OU's IRs with OA's target content are extremely valuable, timely and welcome, both for OU and for OA. 

If I venture to offer some practical advice, it is in no way intended to imply that your work is less than precious. I am merely suggesting ways in which it can be made ever more effective. And one of those ways is to reassure authors by putting their (largely naive and groundless) worries about copyright at ease, rather than reinforcing them.

The default explanation and advice to OU's authors regarding their right to deposit their refereed, accepted final drafts in OU's repository should (in my judgment) be the following:

(1) Every final draft can and should be deposited in OU's IR immediately upon acceptance for publication. There is absolutely no legal obstacle to doing this, without exception; publisher policy and copyright are completely irrelevant to making this deposit.

(2) Set access to the deposit immediately as Open Access if the journal (or the publisher, on behalf of all its journals) has formally stated that all of its authors may make their final drafts OA, without any access embargo (as at least 63% of journals have already done). If you have contractually agreed to an access embargo in your copyright agreement, you can instead set access to the deposit as Closed Access for the duration of the embargo. (Closed Access means only the metadata are openly accessible, not the full-text, until the embargo elapses.)

(3) If the journal or publisher has formally posted that you may make your final draft OA immediately and has elsewhere made negative statements inconsistent with that, act according to the positive statement until and unless you should ever receive a "take-down notice" from the publisher -- at which time you may simply re-set your OA deposit as Closed Access if you wish.

(4) Avoid agreeing contractually to any OA embargo wherever possible.

That, I think, is the only advice an institution and its repository should be giving its authors, to inform and reassure them about (1) their right to deposit and (2) their right to set access to their deposit as OA.

But none of this advice will have much effect one way or the other until and unless OU adopts an OA mandate:

[T]he principal purpose of mandates themselves is to reinforce researchers' already-existing inclination to maximise access and usage for their give-away articles, not to force researchers to do something they don't already want to do.

(Researchers need to be reassured that their departments or institutions or funders are indeed fully behind self-archiving, and indeed expect it of them; otherwise researchers remain in a state of Zeno's Paralysis" about self-archiving year upon year, because of countless groundless worries, such as copyright, journal choice, and even how much time self-archiving takes.)" (Harnad 2009)

CS: "By posting on this issue, I am simply sharing information with the repository community to help us make informed decisions on behalf of our depositors. One of the biggest selling points when advocating open access self-archiving is to reassure our academics that we know what we are doing when it comes to checking publishers’ copyright and self-archiving policies. Depositors are placing their faith in our knowledge and expertise, and therefore I certainly do not think it is a mistake to be thorough."

The best institutional reassurance to its authors is an official institutional deposit mandate. The correct and complete advice (in my view) is (1) - (4) above. More (e.g., fretting about contradictory formal statements by publishers) would be just reinforcing author worries rather than reducing them.

Nor do authors need to resort to "faith." In cases where they have any "reasonable doubts" they should simply set access provisionally as "Closed Access," rather than not depositing at all -- or depositing only after any embargo has elapsed.

CS: "For green OA to be successful, it must be sustainable. For it to be sustainable, it needs to offer a good service."

For green OA to be sustainable, it has to be mandated. Otherwise there is nothing to sustain. Repository managers and library staff trying to beg, borrow or appeal deposits through reassurances about legality will never come anywhere near filling an IR with its target OA content. What is needed is an official institutional deposit mandate.

CS: "If academics think (rightly or wrongly) that we are placing them at risk by making decisions based on cherry-picked statements that suit us, I think most would not see this as providing a good service. Therefore, is it not a strategic mistake to not consider carefully any publisher mixed messages?"

I think that there might be an underlying premise here to the effect that: the way to fill an IR is to provide unmandated authors with a proxy deposit service together with reassuring legal advice. 

My own view, for what it's worth, is that this premise is profoundly erroneous: that (1) - (4) is all that repository managers and librarians need to do for authors (though if for some reason they really wish to, they can do their keystrokes for them too).

Any further effort and energy (apart from the technical maintenance of the IR, including the all-important incentive: IRstats) will be most fruitful if directed toward persuading the university (as well as its individual faculties, schools, departments and labs) of the necessity, feasibility and benefits of adopting a Green OA deposit mandate, rather than fussing about publishers' self-contradictory policy statements. We have to keep reminding ourselves that self-archiving is entirely in the hands of the research community, not the publishing community -- but those hands (or rather their fingertips) need to be mandated into movement:

It is useful for the research community to keep reminding itself that the only thing that stands between them and universal OA is keystrokes.

Stevan Harnad
American Scientist Open Access Forum

---

SUMMARY: (1) Under all circumstances, deposit the final, refereed, accepted draft of your journal article (postprint) in your Institutional Repository (IR), immediately upon acceptance for publication. There is no need whatsoever to make a single exception.
    (2) Unless you are certain that you have reason not to, set access to that deposited draft as Open Access (OA) immediately upon deposit. (Otherwise, you can set access as Closed Access, for the duration of any publisher embargo you wish to honor.)
    (3) The only thing even remotely at issue is whether or not, if you deposit a document in your IR and make it OA, you receive a take-down notice from the publisher.
    (4) If you receive a take-down notice and you wish to honor it, set access as Closed Access for the duration of any publisher embargo you wish to honor.
    (5) Meanwhile, if there are multiple, self-contradictory statements of the publisher's policy, act on the most positive one and don't give it another thought until and unless you ever receive a take-down notice.

---

On 21-May-09, at 6:58 AM, in the American Scientist Open Access Forum, C.J.Smith posted "The definitive answer from Wiley-Blackwell":

In the Wiley-Blackwell copyright assignment form, which most authors publishing in this company’s journals will sign, it states (under item ‘C.2. Permitted Uses by Contributor > Accepted Version’) that:

“Re-use of the accepted and peer-reviewed (but not final) version of the Contribution shall be by separate agreement with Wiley-Blackwell”

I took this to mean that authors can, if they want to, approach Wiley-Blackwell on an article-by-article basis for permission to deposit their final draft manuscripts in their institutional repository.

However, having chased up permission with Wiley-Blackwell on behalf of an author here at the Open University, I received (after a number of email exchanges) the following (apparently definitive) answer from their Associate Permissions Manager:

“The submission version is the only version we allow to be placed into institutional repositories. We do not allow the post-peer review article, the author’s final draft, or any other version to be deposited. Therefore, I can confirm that permission is hereby refused in this case.”

So, unfortunately, given the size of Wiley-Blackwell (fourth largest academic journals publisher?), it seems we have a disappointing barrier to Green OA. Of course, Wiley has always not permitted final draft self-archiving, but it now appears that in merging with Blackwell they have stuck with this policy rather than embracing Blackwell’s.

Although Wiley-Blackwell do offer compliance with the ‘major’ funder mandates (e.g. NIH), it leaves me wondering how they intend to serve their authors who are mandated (for example) by one of the UK Research Councils. Have they thought this through? Are they prepared to lose authors who (in theory at least) could not possibly publish with them because they are not permitted to self-archive?

Colin Smith
Research Repository Manager
Open Research Online (ORO)
Open University Library
Web: http://oro.open.ac.uk
Blog: http://www.open.ac.uk/blogs/oro
Twitter: http://www.twitter.com/smithcolin

---

I don't think anything like a definitive answer has been reached through this proxy permission-seeking, insofar as Wiley's Green-status is concerned: All we have is coyness and self-contradiction from Wiley, about whether or not it endorses immediate author Open Access Self-Archiving of the final, refereed draft (postprint).

First, there appear to be three Wileys:

John Wiley & Sons (GREEN)
Wiley-VCH Verlag Berlin (GREEN)
Wiley-Blackwell (GRAY)

Second, the three Wileys have inconsistent self-archiving policy statements -- inconsistent among the three of them, and inconsistent within each.

Wiley-Blackwell says this :

Wiley-Blackwell journal authors can use their accepted article in a number of ways, including in publications of their own work and course packs in their institution. An electronic copy of the article (with a link to the online version) can be posted on their own website, employer's website/repository and on free public servers in the subject area. For full details see authorservices.wiley.com/bauthor/faqs_copyright.asp .

Wiley-VCH says this (sample from one of its journals):

and John Wiley & Sons says this (sample from one of its journals):

Now let me give some sensible practical advice to authors and Repository Managers alike:

(1) Under all circumstances, deposit the final, refereed, accepted draft of your journal article (postprint) in your Institutional Repository (IR), immediately upon acceptance for publication. There is no need whatsoever to make a single exception.

(2) Unless you are certain that you have reason not to, set access to that deposited draft as Open Access (OA) immediately upon deposit. (Otherwise, you can set access as Closed Access, for the duration of any publisher embargo you wish to honor.)

(3) The only thing even remotely at issue is whether or not, if you deposit a document in your IR and make it OA, you ever receive a take-down notice from the publisher.

(4) If and when you ever receive a take-down notice and you wish to honor it, set access as Closed Access for the duration of any publisher embargo you wish to honor.

(5) Meanwhile, if there are multiple, self-contradictory statements of the publisher's policy, act on the most positive one and don't give it another thought until and unless you receive a take-down notice.

And above all, reflect that if the millions of articles that have been made OA (by computer scientists, physicists, economists, and all other disciplines) since the 1980's had waited (or asked) for a clear, unambiguous green light in advance from each publisher, we would have virtually none of those millions of articles accessed, used and built-upon across those decades by the many users worldwide whose institutions could not afford access to the publisher's subscription edition.

A word to the wise...

Stevan Harnad
American Scientist Open Access Forum

An update of Harvard computer scientist Michael Merzinich's "The ACM Does NOT Support Open Access" (discussed here yesterday) reports that ACM has made it clear it is fully Green on OA self-archiving, but that discussions with Harvard are still underway for the extra re-use rights stipulated in the Author's Addendum.

The nuances here are about the differences between "gratis" OA (free online access) and "libre" OA (free online access plus certain further re-use rights).

I will make no secret of what my own view on this is -- and I've been at this for a very, very long time: Free online access ("gratis OA") is all you need in order to make all the rest happen. The rest will come with the territory, eventually; but the territory must come first. Gratis OA can be and is being mandated by universities and funders (but so far there are only 77 mandates, out of a potential worldwide total of 10,000 or more).

Libre OA asks for more, and entails more complications. Hence it is both harder to agree on adopting a Libre OA mandate, and harder to get compliance (rather than opt-out). The right strategy is hence to stick to mandating Gratis OA for now. Gratis OA is urgent; addenda can wait. The "Green" journals that have already formally endorsed providing immediate Gratis OA (63%) are on the side of the angels. It is foolish and counterproductive to demonize them. If one wants to rant at journals, rant at the pale-green ones, that only endorse self-archiving unrefereed preprints, and that embargo Gratis OA to the refereed postprints (34%); or the gray journals, that don't endorse any form of self-archiving at all (3%).

Libre OA will come, as surely as day follows night, once we have reached universal Green Gratis OA. To insist on over-reaching instead for Libre OA now (by insisting on Libre OA author addenda), instead of grasping the Green Gratis OA that is already within our reach (yet still not being grasped by 99.937% of the universities and funders on the planet) is just one of a long litany of gratuitous mistakes we keeping making over and over, needlessly delaying the optimal, inevitable, obvious and long overdue outcome, year upon year.

The "over-reaching" list is long, and includes the sublime and the ridiculous: Libre OA (re-publishing and re-use rights for refereed journal articles, when Green Gratis OA would already have them online free for any user webwide, 24/7), Gold OA publishing, central (rather than institutional) self-archiving, the publisher's PDF (rather than just the author's refereed, revised, accepted final draft), peer-review reform, publishing reform, copyright reform, freeing all "knowledge" (rather than just freeing all of refereed research first), solving "the" digital preservation problem, solving "the" online search problem, etc. etc.

Mark my words. We will no doubt continue this fruitless frenzy of over-reaching in all directions for some time to come (world hunger may be next on the OA agenda) instead of doing the immediately doable (which is the mandating of universal Green Gratis OA by all universities and all funders), but in the end it will become clear that in order to have all the good things worth having among the things that can be nontrivially linked to OA, all we ever had to do was those those simple 99,937 GG mandates (plus the distributed volley of keystrokes they entail).

Suggested Exercise:
Test What Already Comes with the Gratis Green OA Territory:

"Re-use rights for teaching" are as good example as any of how people are simply not thinking through what really comes with the territory with Gratis Green OA:

If you deposit your article, free for all, in Harvard's Institutional Repository (IR), every teacher and every student webwide has 24/7 access to it -- can link to it, read it on-screen, download it, print it off, data-crunch it.

The days of permissions and "course packs" (for refereed journal articles) would be over -- completely over -- if all universities and funders mandated that all their employees' and fundees' refereed journal articles (the authors' final refereed drafts) were deposited in their IRs, thereby making them Gratis Green OA (the kind ACM endorses).

Now try that out as an intuition pump with some of the other things you thought you desperately needed the Author's Addendum for, over and above GG OA...

There will be a few -- a very few. But none of them will be remotely as important and urgent as Gratis Green OA itself. Yet here we are, holding up GG OA because we are holding for and haggling over needless Author's Addenda instead of working to universalize vanilla GG OA.

And even the very few uses that don't come immediately with the GG OA territory will follow soon after, once we have reached or neared universal GG OA.

First things first... Or, Let not the Best stand in the way of the (immeasurably) Better...

Amen.

Now back to the soothing fulminations against ACM for not immediately conceding the re-use rights that the author-addendum mandates are needlessly insisting upon...

Stevan Harnad
American Scientist Open Access Forum