Thursday, February 23. 2017
Re: Copyright: the immoveable barrier that open access advocates underestimated (Richard Poynder)
1. Stick to peer-reviewed research articles: that’s all FOA is or was ever about.
2. Copyright and re-use rights are and always have been a red herring in the FOA age.
3. All that’s needed is an FOA version of the peer-reviewed research article.
4. That’s the author’s peer-reviewed final draft.
5. The only thing needed from “journals” (or equivalent) is the adjudication and certification of the peer review.
6. That’s a service, not a product: Nothing to “copyright.”
7. To make the current house of copywrit (sic) cards collapse, all authors need do is make 4 (the author’s peer-reviewed final draft FOA (freely accessible online)
8. FOA immediately (upon “acceptance”) and permanently (“FIPATRAFTO”).
9. For the faint-hearted and superstitious, there’s the Copy-Request Button during any (bogus) publisher “embargo” on “OA.”
10. Like Copyright worries (2), Button worries are red herrings.
11. FOA is all that’s needed or was ever needed.
12. Once researchers, their institutions and their funders get round to providing FOA (= “Green, Gratis OA”), Fair Gold “OA” (peer-review service fees) and all the re-use rights researchers need will be within trivial reach.
(Waiting for researchers, their institutions and their funders to get their heads around this and to set their fingers in motion continues to be yawningly boring; please wake me when they get round to it...)
Sunday, December 22. 2013
"I don't want free online access: I want free online access with re-use rights!
But we don't even have free online access yet..."I don't want free online access: I want free online access with re-use rights!"
But free online access is part of free online access with re-use rights..."I don't want free online access: I want free online access with re-use rights!"
But free online access is already within immediate reach and free online access with re-use rights is not..."I don't want free online access: I want free online access with re-use rights!"
But free online access today will pave the way for free online access with re-use rights tomorrow..."I don't want free online access: I want free online access with re-use rights!"
But re-use rights to only a fragment of the research in a field are near-useless..."I don't want free online access: I want free online access with re-use rights!"
But publishers allowing authors to provide free online access and re-use rights can immediately be undercut by free-riding rival publishers; publishers allowing authors to provide free online access alone cannot..."I don't want free online access: I want free online access with re-use rights!"
But publishers will sooner allow authors to provide free online access than allow them to provide free online access with re-use rights…"I don't want free online access: I want free online access with re-use rights!"
But institutions and funders can sooner mandate free online access than free online access with re-use rights…"I don't want free online access: I want free online access with re-use rights!"
But all non-subscribing users need free online access; not all or even most or many users need re-use rights..."I don't want free online access: I want free online access with re-use rights!"
But all authors already want all non-subscribing users to have immediate free online access; not all or even most or many authors know or care about re-use rights yet..."I don't want free online access: I want free online access with re-use rights!"
But free online access with re-use rights today entails paying publishers even more, over and above uncancellable subscriptions, out of scarce research funds, whereas free online access entails no extra cost..."I don't want free online access: I want free online access with re-use rights!"
But free online access is better, even if free online access with re-use rights is best..."I don't want the better: I want the best!"
But the better will pave the way for the best..."I don't want the better: I want the best!"
But the better is already within reach and the best is not: why not grasp it?"I don't want the better: I want the best!"
Wednesday, December 18. 2013
"The University of Calgary has been contacted by a company representing the publisher, Elsevier Reed, regarding certain Elsevier journal articles posted on our publicly accessible university web pages. We have been provided with examples of these articles and reviewed the situation. Elsevier has put the University of Calgary on notice that these publicly posted Elsevier journal articles are an infringement of Elsevier Reed’s copyright and must be taken down."If Elsevier sends a take-down notice to a university, you have two simple options:
(1) Leave it up, and send the notice back to Elsevier with a copy of Elsevier’s policy on self-archiving.(If the take-down notice was because you deposited the publisher’s PDF, make the publisher’s PDF Closed Access and deposit the author’s final draft instead, and make that OA.)
And fix your mandate to make sure it specifies that the author’s final draft should be deposited immediately upon acceptance for publication, not the publisher’s PDF.
(Calgary would have done better to respond pragmatically to this latest round of Elsevier FUD and bluff -- but, after all, this is exactly what FUD's for, isn't it?)
Thursday, July 12. 2012
Overselling the Importance and Urgency of CC-BY/CC-BY-NC for Peer-Reviewed Scholarly and Scientific Research
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
Thursday, November 17. 2011
Thursday, September 8. 2011
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.
Saturday, January 15. 2011
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."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.
American Scientist Open Access Forum
Thursday, September 2. 2010
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 licensewhether exclusive or nonexclusivetransfers 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.(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
Thursday, July 30. 2009
Shavell, Steven (2009) Should Copyright Of Academic Works Be Abolished?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.
American Scientist Open Access Forum
Wednesday, July 29. 2009
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?
American Scientist Open Access Forum
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The American Scientist Open Access Forum has been chronicling and often directing the course of progress in providing Open Access to Universities' Peer-Reviewed Research Articles since its inception in the US in 1998 by the American Scientist, published by the Sigma Xi Society.
The Forum is largely for policy-makers at universities, research institutions and research funding agencies worldwide who are interested in institutional Open Acess Provision policy. (It is not a general discussion group for serials, pricing or publishing issues: it is specifically focussed on institutional Open Acess policy.)
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