Re: Poynder on Digital Rights Management and Open Access

From: Richard Poynder <aotg20_at_DSL.PIPEX.COM>
Date: Sun, 24 Apr 2005 11:34:00 +0100

I thank Stevan for his comments. He makes a number of points, but I think
the key question is the extent to which uncertainty about copyright is
acting as a deterrent to self-archiving. The first issue confronting the OA
movement is that there is currently no definitive answer as to whether
researches can legally self-archive without publisher permission. Of course,
most publishers do not object to self-archiving. The second issue then is
that since evidence suggests that — regardless of its legality, regardless
of the existence of publisher permission — many researchers appear to
believe that copyright *does* prohibit them from self-archiving how can the
movement resolve the matter?

Given that publishers appear unlikely to abandon their proprietary habits
voluntarily Stevan justifiably draws attention to my failure to suggest more
concrete ways in which those who support OA can achieve clarity on this
matter by assisting researchers to obtain more liberal licences. Let me
suggest one: research funders could not *only* mandate that researchers
self-archive, but *in addition* mandate them to retain sufficient rights to
ensure that they are free to self-archive their papers, and to be able to do
so immediately on publication. It is not clear to me why they cannot (as
specified in the SPARC Author's Addendum
http://www.arl.org/sparc/author/addendum.html) also insist that publishers
provide a copy of the published PDF (without any DRM security measures
incorporated). This might even help to cut down the number of keystrokes
that researchers have to make in order to self-archive.

Stevan is clearly right to say that funders could just tell researchers that
they are entitled to self-archive, but as we saw with the NIH plan, clarity
on the current situation vis--vis rights does not exist even amongst
funders. Moreover, where publishers give permission to self-archive, but
only after an embargo, I am not clear how the current status quo can ever
remove researchers' reluctance to ignore such embargoes without a court
ruling on the legalities of self-archiving. For these reasons I suggested
that the OA movement needs to address rights issues if it wants to move
forward.

It is worth noting that three of the recommendations made by the
much-applauded UK Select Committee Report
(http://www.publications.parliament.uk/pa/cm200304/cmselect/cmsctech/399/399
14.htm) addressed the issue of rights. Most notably one of those
recommendations stated: "The issue of copyright is crucial to the success of
self-archiving. We recommend that, as part of its strategy for the
implementation of institutional repositories, Government ascertain what
impact a UK-based policy of author copyright retention would have on UK
authors. Providing that it can be established that such a policy would not
have a disproportionately negative impact, Research Councils and other
Government funders should mandate their funded researchers to retain the
copyright on their research articles, licensing it to publishers for the
purposes of publication. The Government would also need to be active in
raising the issue of copyright at an international level. (Paragraph 126)"

This, along with all the other Select Committee recommendations, was of
course rejected by the UK Government. It may be, however, that the
forthcoming Research Councils UK policy (http://www.rcuk.ac.uk/whatsnew.asp)
will pick up this recommendation and act on it in some way. After all, what
the Creative Commons has taught us is that copyright does not have to be a
winner-takes-all process. All that is required is that researchers retain
*sufficient rights to self-archive*, not *all rights*.

I would add that my intention in the article was not to suggest that
researchers stop self-archiving in order first to focus their attentions on
ways they can avoid plagiarism, or text-corruption etc. in an OA
environment; nor was it to recommend that resolving rights issues be given
priority over self-archiving. My point was that since copyright appears to
be acting as a significant deterrent to self-archiving the OA movement is
more likely to achieve its objectives if it addresses the issue of rights,
rather than insisting that there is no issue.

Richard Poynder
www.richardpoynder.com

> -----Original Message-----
> From: American Scientist Open Access Forum
> [mailto:AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAX
> I.ORG] On Behalf Of Stevan Harnad
> Sent: 23 April 2005 20:49
> To: AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG
> Subject: Poynder on Digital Rights Management and Open Access
>
> Richard Poynder has written an -- as always -- thoughtful and
> informative
> article:
>
> Richard Poynder, The role of digital rights management in
> Open Access,
> Indicare, April 22, 2005.
> http://www.indicare.org/tiki-read_article.php?articleId=93
>
> http://poynder.blogspot.com/2005/04/role-of-digital-rights-man
> agement-in.html
>
> Nevertheless, Richard's article also contains a few prominent
> internal contradictions, and once these contradictions are
> seen and resolved, it is Richard's thesis -- the seemingly
> mild thesis that Digital Rights Management needs to be made a
> priority for Open Access -- that is left contradicted.
>
> I will analyze these contradictions in a moment; but first,
> Richard's article also contains a very important and
> potentially misleading error in the form of a rather shrill
> exaggeration of the number of publishers that have been
> inspired to back-pedal on their prior green author
> self-archiving policies under the influence of the recent
> announcement of the NIH 6-12-month Back Access policy: To my
> knowledge, that number is exactly *one* publisher, taking one
> half-step backwards:
>
> Nature Publishing group has back-pedalled from full-green
> [immediate postprint self-archiving] to pale-green [immediate
> preprint self-archiving plus postprint self-archiving after 6
> months]. There has been no other change in the SHERPA/Romeo
> policy database since the NIH announcement. The only
> publishers mentioning an embargo are the four that were
> already either gray (American Chemical Society, Yale U.
> Press, MIT Press) or pale-green (National Research Council of Canada).
>
> http://romeo.eprints.org/publishers.html
>
> This leaves the total percentage of green journals at 92%,
> exactly as before, and merely shifts the
> pale-green/full-green boundary from 13%+79% as before NIH, to
> 16%+76%. This does not seem to me like a basis for stating
> that:
>
> > "more and more publishers are insisting that papers are only
> > self-archived on an embargoed basis, demanding delays of between
> > six and twelve months between publication and self-archiving."
>
> But now let us turn to the basic contradiction: Richard
> suggests that those OA proponents who insist that the
> immediate priority is to self-archive
> *now* (for, at least 92% of OA's target content, of which
> only 15% is being self-archived today) are wrong. Instead of
> giving priority to self-archiving -- and to adopting
> institutional and research-funder policies that require
> self-archiving -- we should give priority to Digital Rights
> Management. So instead of acting on the green light we have
> already from 92% of journals, the priority is instead to go
> back and negotiate something like a Creative Commons License
> with those journals.
>
> And this needs to be done for two reasons: (1) to protect our
> papers from nonattribution, plagiarism or text-corruption
> (something that our existing copyright agreements with our
> publishers already cover!) and
> (2) to dispel the confusion about copyright and permissions
> that is holding back self-archiving.
>
> This re-ordering of priorities is being urged, moreover, in
> full cognizance of the fact that publishers are highly
> unlikely to agree (and, I might add, that authors who are
> already sluggishness about self-archiving, fearful that it
> might entail some risk or burden for them, will have their
> fears amply confirmed by this readjustment of the priorities).
>
> There you have it. I would say that the resolution of this
> contradiction is quite clear: Self-archived articles
> published in green journals (92%) are already protected from
> nonattribution, plagiarism and text-corruption by their
> existing copyright agreements, and the only priority for them
> is self-archiving, immediately. (The 8% minority publishing
> in the gray journals can, if they like, try to negotiate a
> CC-like license with their publishers, but the *priority* is
> the 92% majority, otherwise it is the tail wagging the dog.)
>
> And the remedy for author sluggishness about self-archiving
> and confusion about rights is to adopt clear institutional
> and funder policies on self-archiving and to provide clear
> information on the fact that rights are not at issue when
> supplementing access to one's own green journal articles by
> self-archiving them.
>
> What we don't seem to have quite realized yet is that the
> only real obstacle to 100% Open Access is -- and always has
> been -- not permissions, property, plagiarism, and all those
> other p-words, but KEYSTROKES. It is keystrokes that authors
> are (for a panoply of reasons, all groundless) slow to
> perform. So the only thing that is needed is an
> institutional/funder *incentive* to perform those keystrokes
> (via a suitable variant of the publish/perish requirements
> and rewards that are already in play everywhere today anyway).
>
> For 92% of OA content, the coast is already clear, and green;
> for the 8% of the shoreline that is still gray, the
> keystrokes -- for depositing the full-text plus the metadata
> (author, title, journalname, date, author's email address,
> URL for the official version on the publisher's
> website) into the author's institutional repository should be
> required anyway (for internal record-keeping,
> grant-fulfillment, and performance evaluation purposes). But
> the very last keystroke (the one that sets full-text access
> as "institutional access" or "open access"), can be left
> optional for now. For the 8% of "gray journal" papers, their
> metadata will still be visible to all would-be users webwide,
> and their authors can just keep doing the keystrokes that are
> needed to send copies by email to all eprint-requesters (just
> as they mailed paper reprints in paper days) until they one
> day tire of doing all those extra keystrokes and simply hit
> the OA key.
>
> Now some quote/comments on the text:
>
> > DRM... [Digital Rights Management] can... be used... to
> ensure correct
> > author attribution, to certify document integrity and provenance,
> > to prevent plagiarism, and indeed to enable creators to
> assert their
> > rights in ways that encourage - rather than restrict - access.
>
> Indeed it can be -- but for the 92% of articles published in
> green journals, there is no *need* for any further DRM. What
> is needed is self-archiving. And what authors need in order
> to be encouraged to self-archive is *less* to do, not *more* to do.
>
> > But if researchers don't make clear to their readers on what basis
> > a paper has been released, how will their readers know?
>
> By noting the name of the journal in which it was published,
> just as they always did, whether they accessed it on paper or on-line.
>
> > ...in 2002 a number of intellectual property lawyers, including
> > Lawrence Lessig (cf. sources) and James Boyle, founded
> > Creative Commons (CC).
>
> Yes, but the CC is for a far broader constituency of creators
> than just the authors of the 2.5 million annual articles
> published in the planet's 24,000 peer-reviewed journals (each
> and every one of them an author give-away rather than a
> royalty-seeking work). Nor is the wider constituency of
> give-away work already protected by copyright, as these
> published journal articles already are. So the broader set
> needs CC protection; peer-reviewed journal articles already have it.
>
> > ... while 92 % of scholarly journals now allow their authors to
> > self-archive it is a far from ideal solution. As authors are not
> > permitted to use the publisher's PDF, for instance, the
> self-archived
> > version may be somewhat different from the publisher's version.
>
> So what? The problem today is that 85% of the annual 2.5
> million research articles is not accessible *at all* to many
> of its potential users. Is the priority to wait till
> publishers agree to the self-archiving of their PDF too? The
> author's final, refereed, accepted draft is not enough? Let
> us not keep making such sacrifices for such idealism...
>
> On the contrary; let there be a clear difference between the
> author's self-archived postprint and the publisher's official
> PDF. Let the author's supplementary version point to the
> publisher's official PDF, both for scholarly purposes and so
> that those users whose institutions can afford access to it
> know where to go to get it. But OA is not about the
> publisher's PDF: It is about the peer-reviewed *content*.
>
> > [C]onfusion and uncertainty over copyright represents one of the
> > greatest obstacles to self-archiving today, and perhaps explains
> > why still only 15 % of authors self-archive.
>
> The suggestion to add the burden (and risk of failure) of
> having to try to renegotiate DRM/CC with their publishers,
> over and above the otherwise simple series of keystrokes
> (that authors already believe, wrongly, to be a lot more of a
> burden to perform than they really are
> [http://eprints.ecs.soton.ac.uk/10688/]) is not to reduce
> confusion and uncertainty but to compound it!
>
> Besides, we have already been given the publishers' likely response:
>
> > "Were we presented with this [DRM] Addendum, we would decline to
> > publish the paper. I am quite sure a majority of publishers would
> > do the same" (Banks 2005).
>
> To repeat: Ninety-two percent of journals are already green
> on self-archiving; but to now to go on and ask them for still
> more -- to insist on renegotiating copyright or on having the
> right to self-archive the publisher's PDF -- is not only
> asking for more than what is necessary for 100% OA, but for
> more than what is reasonable or fair to ask. Far better to
> adopt institutional policies that require their authors to do
> what their publishers have already given them their blessing to do.
>
> > The solution, suggests John Ober, director of the policy,
> planning and
> > outreach office of scholarly communication at the
> California Digital
> > Library...is for publishers to "turn their publication copyright
> > policies into the appropriate 'set' of Creative Commons elements"
>
> Yes, one can state that as "the solution." But whereas right
> now the problem (for at least 92% immediate OA) is to get
> authors to do the keystrokes, this "solution" would compound
> that problem by first also requiring publishers to agree to a
> lot more -- and a lot more that is completely unnecessary in
> order to reach 100%. And a lot more improbable too, than
> just getting authors to do the keystrokes (which merely calls
> for an employer/funder policy that requires it).
>
> > Far from helping to facilitate self-archiving, however,
> > most subscription-based publishers today appear more intent on
> > emasculating it.
>
> Then why encourage them by needlessly asking for more,
> instead of just going when the going is green?
>
> > Publishers are also insisting that authors provide a link from
> > the archived version to the official version of the article on the
> > publisher's web site, and that they include the article's unique
> > Digital Object Identifier (DOI) The aim is to drive users
> away from
> > the free version of the article that has been
> self-archived, to the
> > for-fee version on the publisher's web site.
>
> There is nothing wrong with directing (not "driving") those
> who can afford it to the publisher's official PDF! The
> author's postprint is for those who cannot afford the PDF.
> And that is what OA is about: the content, not the form.
>
> > The next stage in this strategy may be for publishers to change
> > direction and, instead of prohibiting authors to self-archive
> > the publisher's PDF, to actively encourage it. This would give
> > publishers an opportunity to reassert their ownership of
> the article,
> > to reinforce their brand, and to charge authors in the
> process. But
> > the real attraction is perhaps that the PDF file format is ideally
> > suited to the use of second-layer DRM (technical
> measures) enabling
> > publisher-determined usage rights to be incorporated into the
> > articles.
>
> To repeat. These alarums are all misdirected. The target
> isn't the publisher's PDF (and let that be booby-trapped in
> any way its creator may see fit: who cares?). The target is
> the content of the author's peer-reviewed final draft (the
> postprint). And the problem is that 85% of that OA content is
> not yet being self-archived. The priority, then, is to
> provide that 85%, as soon as possible, not to continue
> worrying ineffectually about non-issues like PDF or DRM!
>
> > "Were we presented with this [DRM] Addendum, we would decline to
> > publish the paper. I am quite sure a majority of publishers would
> > do the same" (Banks 2005).
>
> QED
>
> > the NIH's decision not to mandate (but merely encourage) its
> > researchers to self-archive appears to have been partly
> influenced by
> > uncertainties over copyright. This suggests that until
> the copyright
> > situation is clarified uncertainty over rights -- and how they are
> > managed -- will remain a serious obstacle to OA.
>
> The only serious obstacle to OA today is the absence of
> institutional policies requiring the self-archiving of
> institutions' own research article output. Berlin 3 has now
> recommended such a policy:
>
> http://www.eprints.org/berlin3/outcomes.html
>
> And institutions are at last committing themselves to going
> ahead and adopting it:
>
> http://www.eprints.org/signup/fulllist.php
>
> Stevan Harnad
>
> AMERICAN SCIENTIST OPEN ACCESS FORUM:
> A complete Hypermail archive of the ongoing discussion of
> providing open access to the peer-reviewed research
> literature online (1998-2005) is available at:
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> To join or leave the Forum or change your
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> http://amsci-forum.amsci.org/archives/American-Scientist-Open-
> Access-Forum.html
> Post discussion to:
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>
> UNIVERSITIES: If you have adopted or plan to adopt an
> institutional policy of providing Open Access to your own
> research article output, please describe your policy at:
> http://www.eprints.org/signup/sign.php
>
> UNIFIED DUAL OPEN-ACCESS-PROVISION POLICY:
> BOAI-1 ("green"): Publish your article in a suitable
> toll-access journal
> http://romeo.eprints.org/
> OR
> BOAI-2 ("gold"): Publish your article in a open-access
> journal if/when
> a suitable one exists.
> http://www.doaj.org/
> AND
> in BOTH cases self-archive a supplementary version of your article
> in your institutional repository.
> http://www.eprints.org/self-faq/
> http://archives.eprints.org/
>
Received on Sun Apr 24 2005 - 11:34:00 BST

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