Re: Author's Rights: Going Too Far - Or Industry Standard?

[Stevan Harnad <harnad@ecs.soton.ac.uk>]

On Mon, 17 Mar 2008, Sandy Thatcher wrote:

> If peer-reviewed papers are allowed to be posted on IRs and 
> personal web sites, how is this not open access? My 
> understanding is that this is what Stevan Harnad calls Green 
> OA.
Yes, peer-reviewed papers, being deposited and made freely 
accessible in an IR, is indeed OA -- 100% full-blooded OA (and 
there's only one OA: Green OA self-archiving and Gold OA 
publishing are just two different ways to provide it).

I think I can sort out the confusion (and disagreement):

The original BOAI definition went a little overboard in 
"defining" OA.

(I am co-culpable, since I was one of the co-drafters and 
co-signers, but I confess I was inattentive to these details at 
the time. If I had been thinking carefully, I could have 
anticipated the consequences and dissented from the definition 
before it was co-signed. As it happened, I dissented later.)

The original definition of OA did not just require that the 
full-text be accessible free for all on the web; it also required 
author-licensed user re-use and re-publication rights (presumably 
both online and on-paper).

If I had not been too addle-brained to realize it at the time, it 
would have been obvious that this could not possibly be the 
definition of OA, if we were not going to price ourselves right 
off the market: We had (rightly) claimed that what had made OA 
possible was the *new medium* (the Net and the Web), which had 
for the first time made it possible for the authors of 
peer-reviewed journal articles (all of them, always, author 
give-aways, written only for usage and impact, not access-toll 
income) to give away their give-away work big-time, at last, as 
they had always wanted to do (and had already been doing, in a 
much more limited way, in mailing reprints to requesters).

That fundamental new fact would have been turned into just an 
empty epiphenomenal totem if our punch-line had been that 
*on-paper [i.e., print] re-publication rights* are part of OA! 
For one could just as well have claimed that in the paper era 
(and no one would have listened, rightly).

Paper re-publication rights have absolutely nothing to do with OA 
-- directly. OA is an online matter.

Of course, once Green OA prevails, and all peer-reviewed papers 
are accessible for free, worldwide, 24/7, online, then on-paper 
re-publication rights will simply become moot, because there will 
be no use for them!

And that's why I was so obtuse about the original BOAI definition 
of OA: Because although it was premature to talk about paper 
re-publication rights, those would obviously come with the OA 
territory, eventually; so (I must have mused) we might as well 
make them part of our definition of OA from the outset.

Well, no, that was a mistake, and is now one of the (many) 
reasons the onset of the "outset" is taking so long to set in! 
Because here we are, over-reaching, needlessly, for rights we 
don't need (because they will eventually come with the OA 
territory anyway) at the cost of continuing to delay OA by asking 
for more than we need.

The same is true about the other aspects of this unnecessary and 
counterproductive over-reaching: Just about all of what some of 
us are insisting on demanding formally and legalistically today 
already comes with the free online (i.e., OA) territory (and 
immediately, not eventually, as re-publishing rights will):

We don't need to license the right to download, store, print-off 
and (locally) data-mine OA content. That's already part of what 
it means for a text to be freely accessible online.

Nor do we need to insist on the right to re-publish the text in 
course-packs for teaching purposes: Distributing just the URL has 
exactly the same effect!

Re-publishing by a third party (neither the publisher, nor the 
author, nor the author's employer) is another matter, however, 
whether online or on paper.

Simple online re-publishing is vacuous, because, again, 
harvesting the URLs and linking to the OA version in the IR is 
virtually the same thing (and will hence dissolve this barrier 
completely soon enough, with no need of advance formalities or 
legalities).

Third-party re-publishing on-paper (print) will have to wait its 
turn; it is definitely not part of OA itself -- but, as noted, to 
the extent that there is any use left for it at all, it will 
eventually follow too, once all peer-reviewed research is OA, for 
purely functional reasons.

Finally, Google can and will machine-harvest and data-mine OA 
content, just as it harvests all other freely accessible online 
content. It will also reverse-index it and "re-publish" it in 
bits, online. Other data-miners may not get away with that 
initially -- but again, once we reach 100% OA this barrier too 
will dissolve soon thereafter, for purely functional reasons. But 
it is not part of OA itself, and insisting on it now, 
pre-emptively (and unnecessarily) will simply delay OA, by 
demanding more than we need -- because more is always harder to 
get than less.

And (to finish this rant) this is why I am opposed to the 
Harvard-style copyright-retention mandates (which, because they 
ask for more than necessary, need to add an opt-out clause, which 
means they end up getting less than necessary). We don't need to 
mandate copyright retention at this time. It's wonderful and 
highly desirable to have it if/when you can have it, but it is 
*not necessary for OA.* And OA itself will soon bring on all the 
rest.

All that's necessary for OA is free online access. Indeed -- and 
I'm afraid I risk getting Sandy's hackles up with this one again, 
so I will avoid using the controversial phrase "Fair Use" -- 
mandating immediate full-text *deposit*, without opt-out, with 
the option of making access to the full text OA wherever already 
endorsed by the journal (62%) and "almost OA" (i.e., Closed 
Access plus the semi-automatic "email eprint request") for the 
rest will be sufficient to get us to 100% OA not too long 
thereafter.

Holding out instead for copyright-retention, with an author 
opt-out option, in order to try to ensure getting 100% OA from 
the outset, is simply a way to ensure getting nowhere near 100% 
OA-plus-almost-OA from the outset, because of author opt-outs.

Summary: OA is free online access, and the necessary and 
sufficient condition for reliably reaching 100% OA soon after the 
mandate is implemented is to mandate immediate deposit with no 
opt-out. There is no need for licensed re-use and re-publication 
rights; copyright retention should just be described as a highly 
recommended option (which is what a "mandate with an opt-out" 
amounts to anyway). All the rest will happen of its own accord 
after 100% immediate-deposit is achieved. (The only obstacle to 
100% OA all along has been keystrokes, nothing but keystrokes, 
for which all that is needed is a keystroke mandate.)

Stevan Harnad

> Sandy Thatcher
> Penn State University Press
>
> > Is Author's Rights going too far, as a couple of recent 
> > commenters have suggested - or, are liberal author's rights 
> > rapidly becoming an industry standard?
> >
> > The recent statement on the topic by the STM / PSP / ALPSP 
> > groups suggests the latter, that the emerging standard in the 
> > industry is liberal copyright which leaves most rights with 
> > the author.
> >
> >  From the Statement:
> >
> > Standard journal agreements typically allow authors:
> >
> > * To use their published paper in their own teaching and 
> > generally within their institution for educational purposes * 
> > To send copies to their research colleagues * To re-use 
> > portions of their paper in further works or book chapters, and 
> > * To post some version of the paper on a pre-print server, 
> > their Institutional Repository or a personal web site (though 
> > sometimes not for the weekly news-oriented science or medical 
> > magazines, for public health and similar reasons)
> >
> > It is also noteworthy that the language refers to grants of 
> > copyright or publishing agreements, an accurate reflection of 
> > this moment in the transition to open access, when many, but 
> > not all, publishers have moved to a "license to publish" and 
> > away from the older and unnecessary copyright transfer 
> > agreement.
> >
> > This is not open access, but definitely a step in the right 
> > direction! (Even if the sentence starting though sometimes 
> > not...is just a little obscure).
> >
> > The STM/PSP/ALPSP position statement was recently posted to 
> > Liblicense, 
> > at:http://www.library.yale.edu/~llicense/ListArchives/0803/msg00035.html
> >
> > Any opinion expressed in this e-mail is that of the author 
> > alone,and does not represent the opinion or policy of BC 
> > Electronic Library Network or Simon Fraser University Library.
> >
> > Heather Morrison, MLIS
> > The Imaginary Journal of Poetic Economics
> > http://poeticeconomics.blogspot.com