Re: Public Access to Science Act (Sabo Bill, H.R. 2613)

From: Sally Morris <>
Date: Fri, 5 Sep 2003 18:53:58 +0100

Actually, I disagree with your statement that "... publishers are likely ...
to try to contest it [authors not signing (c) transfer] if it risks becoming
the majority case". It's my impression that the number of publishers who do
not require copyright transfer is growing, as they realise that they can do
just about everything they need to do to safeguard their business without
it, given a suitably crafted agreement. Even those who do normally require
copyright transfer accept that they can't always get it - not only in the
case of Govt authors, but also with employees of certain types of corporate;
this certainly doesn't stop them publishing such papers. What they can't
do without copyright - as Marty Blume of APS has convincingly pointed out -
is to act quite so rapidly or decisively to protect an author's interest in
cases of plagiarism or other infringements.


Sally Morris, Secretary-General
Association of Learned and Professional Society Publishers
South House, The Street, Clapham, Worthing, West Sussex BN13 3UU, UK

Phone: 01903 871686 Fax: 01903 871457 E-mail:
ALPSP Website

----- Original Message -----
From: "Stevan Harnad" <>
Sent: Friday, September 05, 2003 5:05 PM
Subject: Re: Public Access to Science Act (Sabo Bill, H.R. 2613)

> On Fri, 5 Sep 2003, Sally Morris made a very good point:
> > Stevan Harnad wrote:
> >sh> "Most of the existing 24,000 journals would not
> >sh> accept to publish public-domain texts"
> >
> > I think this is probably inaccurate. I would guess that practically all
> > those journals do publish works which are currently governed by the
> > Domain status of US Government works.
> Sally is quite right to point out that I had overlooked the fact that many
> publishers are already at home with the fact that a certain percentage
> of their authors cannot sign copyright transfer agreements because they
> are government employees. Effectively, the Sabo Bill, if it passed, would
> simply increase the percentage of such authors. So it was incorrect on
> my part to say that they would not accept to publish them: Given the
> percentage of journal content that is based on US funded research, they
> would be forced to.
> But the Bill has not passed yet, and the publishers (and authors) will
> still have their say. The percentage of authors who did not sign copyright
> transfer in the past (for this reason, or even for other reasons)
> was small enough so that publishers could discount it as statistical
> variation. But publishers are likely, I think, to try to contest it if it
> risks becoming the majority case. Do they have a valid argument?
> I think they do, for the simple reason that if the public-domain
> constraint is being introduced in order to create open access, then it is
> a far stronger constraint than it needs to be. Merely forcing publishers
> to allow authors to self-archive accomplishes the very same goal in a
> far less radical and risky way -- for both publishers and authors.
> For authors, putting their texts into the public domain leaves them
> less protected from plagiarism and text-alteration. For publishers,
> a large increase of public-domain content could easily threaten
> their viability. In this day and age, all we have to imagine is that
> another copycat company could systematically (and legally) harvest and
> aggregate open-access public-domain contents as soon as they appear, and
> immediately offer them, at cut-rate prices, both online and on-paper. Why
> subscribe to journal X, which published the contents, if you can subscribe
> to journal or aggregator Y for the same contents, at a far lower
> price? (US funded research is a huge chunk of many journals'
> contents. That's why this Bill is so important. But that's also why it's
> so important that it should avoid overkill.)
> Wouldn't exactly the same risk be there if instead of mandating that the
> contents be public-domain, the Bill mandated only that they be
> open-access? Definitely not. With just open access, copyright continues to
> be asserted, whether the author transfers it to the publisher (retaining
> only the open-access self-archiving right) or merely licenses the content,
> retaining the copyright. Self-archived contents cannot be harvested and
> re-sold, online or on-paper. The publisher (or author) could immediately
> take legal action against that, as before. Self-archiving is the
> prerogative of the author, not of third parties, and it does not even
> include the *author's* right to sell or re-sell his own texts (that has
> to be negotiated separately, as always, if copyright is transfered).
> The self-archiving right is merely the author's right to make his own
> full-text freely accessible online to any would-be user on the web,
> worldwide. That means any individual user, webwide, can read it
> on-screen, navigate it computationally, download it, save it, and print
> it off. It also means that harvesters like google can link to, invert
> and index the full text but they cannot -- if it is copyrighted --
> re-sell the text, online or on-paper (otherwise they would effectively
> become the rival publisher mentioned above).
> Now we come to a delicate point that it is best if all parties --
> open-access advocates and adversaries alike -- face up to squarely
> and frankly : Although it is true that mandating only open-access rather
> than public-domain entails far less risk for publishers (and authors), it
> is not true that it entails *zero* risk for publishers. Whereas putting
> contents into the public domain would allow -- even invite -- attempts to
> undercut the publisher's business, making the contents openly accessible
> online could eventually have a similar effect, indirectly: For whereas
> with public-domain contents, rival cut-rate publishers could legally
> capture the publisher's market, it is conceivable that with open-access
> contents the demand for the publisher's version would simply shrink,
> because users could could get everything they needed using the open-access
> version.
> There is no point denying that this could be the eventual effect
> of the Sabo Bill even if it mandated only open-access rather than
> public-domain. The glue of OAI-interoperability
> for all self-archived research means that
> eventually all users would have the option of accessing all research
> journal content for free from one global virtual OAI archive in the
> sky. But the speed and certainty of abrupt demand-loss is far greater
> with the public-domain option -- and with no advantage at all to
> anyone. Publishers would be put at a needless increased risk of a
> forced, hasty transition to open-access publishing -- a choice that
> should be left to them, and to supply and demand, and to time: *as
> long as open-access itself is provided right now.* Nor would authors
> be better-served by abruptly being forced to place their texts into an
> unprotected, untested limbo.
> The transition to open-access publishing, if and when it actually took
> place, would be a far slower, smoother, and more natural one if it
> occurred as the gradual result of author/institution self-archiving
> rather than a draconian public-domain mandate. The open-access
> cost-recovery model is not yet a tested one. Nor are the sources
> from which to cover the costs yet available or assured. Moreover,
> the model's probability of succeeding is far greater once journal
> publishers have had a chance to accommodate to it gradually -- as they
> would if authors were gradually beginning to self-archive their own
> texts in their own institutional archives.
> With the help of the glue of OAI-interoperability and cross-archive
> search engines like OAIster
> users too would gradually learn the benefits and possibilities of a
> growing online open-access literature. No specific journal would be put
> abruptly at risk, because self-archiving is a distributed, anarchic
> process, even with the glue of OAI-interoperability. It would take
> a long time for libraries or users to ascertain at what point enough of
> the contents of a given journal were openly accessible to make it safe
> to cancel the subscription or license to it.
> And if and when cancellation pressure did begin to build up, publishers
> would have a chance to experiment gradually with cost-cutting and
> down-sizing, to keep making ends meet. There is much talk today about
> immediate transitions to open-access publishing, with wide variation in
> how much it should cost per paper (from <$500 to >$1500) but nobody really
> knows what the the true costs of open-access publishing should or will
> be. Some think the cost per paper will be the same as now, but instead
> of being paid by a set of subscribing institutions, it will be paid by
> the author's institution. But if the author's institution is already
> self-archiving the paper, it is not at all clear what service the
> publisher will need to perform, over and above peer review and editing.
> All these variables would have a chance to adjust themselves gradually
> if the only thing mandated by the Sabo Bill were open access itself.
> We would have immediate open-access, but none of the other risky and
> unpredictable consquences of abruptly mandating that all US
> funded-research papers must be put in the public domain.
> > To my mind, the question really is whether either the authors or their
> > employer actually do anything to avail themselves of the works' Public
> > Domain status. No one seems to have been able to answer this question.
> > If they don't, why should the Sabo Bill's extension of identical status
> > Federally funded works, in itself, be expected to achieve anything for
> > Open Access agenda?
> You are quite right that mandating public domain alone does not even
> ensure that the research will be made open access! It only provides the
> *possibility* of making it open access (which again boils down to
> self-archiving, for publishers always had the possibility of becoming
> open-access publishers!). Mandating open access instead -- by making
> it a condition of research funding that all reulting refereed journal
> articles must be open-access -- thereby mandates an *action* on the part
> of the grant-recipient, namely, that he either publishes the research
> in an open-access journal (if a suitable one exists -- 5% of journals
> currently) or he publishes it in a conventional journal (95%), and also
> self-archives it in his institutional open-access archive (or a central
> one, such as PubMedCentral, where one exists).
> Mandating public domain forces publishers to immediately accept
> public-domain texts (and forces authors to make their texts public
> domain) without any assurance that the texts will be made openly
> accessible online by anyone.
> Mandating open access forces the grant recipient and institution to
> ensure that their own research output is openly accessible. For 5%
> of research, this mandate can be fulfilled by publishing it in an
> open-access journal. For the rest of the 95%, it will force publishers to
> allow self-archiving by exactly the same token as it would have forced
> them to accept public-domain content -- but at far less risk to both
> publisher and author.
> Stevan Harnad
> NOTE: A complete archive of the ongoing discussion of providing open
> access to the peer-reviewed research literature online is available at
> the American Scientist September Forum (98 & 99 & 00 & 01 & 02 & 03):
> or
> Discussion can be posted to:
Received on Fri Sep 05 2003 - 18:53:58 BST

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