Re: Poynder on Digital Rights Management and Open Access

From: Stevan Harnad <>
Date: Sun, 24 Apr 2005 18:52:41 +0100

Richard Poynder wrote:

> I think the key question is the extent to which uncertainty about
> copyright is acting as a deterrent to self-archiving.

On this point we agree: Copyright worries are indeed *one* among the
(32) groundless worries that are 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 researchers can legally self-archive
> without publisher permission.

There is no definitive legal answer because there has not been a single
legal challenge in over 15 years, with hundreds of thousands of articles
prominently already self-archived without seeking publisher permission
(e.g., in the Physics arXiv since 1991, in computer science web and ftp
sites from even earlier). Moreover, the publisher response has been that,
for example, the physics publishers were among the earliest to become
green (i.e., to give self-archiving their official permission). Since
then, 92% of journals have become green.

So what Richard is here calling "the first issue confronting the OA
movement" -- "that there is no definitive answer as to whether researchers
can legally self-archive without publisher permission" -- now pertains to at
most only 8% of the annual 2.5 million articles published.

Is it not the tail (8%) wagging the dog (92%) to conclude from this
that Digital Rights Management (DRM) is the "first issue confronting the
OA movement"? and that the remedy is for all authors to try to re-negotiate
their copyright agreements with their publishers?

Is it not more straightforward to conclude that the 92% that already have
the green light should go ahead and self-archive, and that at most
only the remaining 8% might re-negotiate DRM, if they wish (but that
first they too should at least deposit their metadata and full-texts
into their institutional repositories, with access provisionally set as

Is it not merely fanning fears (without foundation) to insist that
re-negotiating DRM is necessary because "more and more" of the
92% green are back-sliding, when to date only one green publisher
(Nature) has back-slid, and only from full-green (immediate postscript
self-archiving) to pale-green (immediate preprint self-archiving plus
postprint self-archiving 6 months after publication)?

> 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?

Very simply. And the researchers themselves have told us exactly how:

Alma Swan's two international, multidisciplinary surveys have reported
that 79% of authors reply that they do *not* self-archive currently, and will not
self-archive, until and unless their employers or funders *require* them
to do so; but if and when they do require them to do so, these authors reply that
they *will* self-archive, and will self-archive *willingly*. (Only 4%
replied that they would not self-archive even if required; I would say
that a 96% resolution counts as a solution, and is vastly preferable to the
tail wagging -- or holding back -- the dog!)

> 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.

That isn't quite what I said! I said that:

     (1) it wasn't necessary (because the 92% of journals that are
     green already provide copyright protection);

     (2) the 85% of authors today who already find self-archiving too
     burdensome (until/unless required by their employers and funders)
     are not likely to find it less burdensome if now they are expected
     to first successfully re-negotiate DRM with their publishers, and
     even to put the acceptance of their papers at (needless) risk by
     asking their journals for more than the self-archiving permission
     that they already have from 92% of them; and

     (3) the publishers of the 92% of journals that have already given
     self-archiving their green light are unlikely to take kindly to
     being mportuned (needlessly) for still more, when they have already
     agreed to all that is needed (and the only real problem is that
     authors don't *do* it, partly because they are unaware of the
     possibility of self-archiving, or of its impact advantages, but
     mostly because their employers/funders don't require them to do it!).

> Let me suggest one [way to "resolve the matter"]: 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.

This is breaking down (92%) open doors: It is enough that funders (and
employers) mandate that the research they fund must be made open access
by their fundees/employees. They already have their publisher's blessing
to do this for 92% of their articles.

There is *perhaps* no harm in mandating that for articles submitted
to the 8% of journals that are still gray, researchers must try to
re-negotiate their copyright agreement with those publishers; but right
now, there are as yet few institutional mandates in place at all. Apart
from second-guessing what will get sluggish authors to self-archive,
we also have to second-guess what will get sluggish institutions and
funders to mandate: Are institutions/funders more likely to wake up and

    (i) mandate self-archiving alone (with institutional-access plus
    eprint-emailing as the option for the 8% of articles that are in
    the non-green journals for the time being)?

    (ii) mandate self-archiving for the 92% green plus DRM re-negotiation
    for the 8% gray (but at the risk of some opposition from [already
    sluggish] researchers, who may not be willing to do more than
    self-archive, if required)?


    (iii) mandate self-archiving *and* DRM re-negotiation with *all*
    journals, whether green or gray -- thereby inducing almost certain
    objections from researchers who do not wish to put the acceptance
    of their articles by the journal of their choice needlessly at
    risk and do not want to be constrained in which journal they choose
    publish in?

We are right now at a level of 15% OA self-archiving. Policy (i) would
immediately fast-forward us to at least 92% OA, without any further
unnecessary complications, deterrents or uncertainty. (ii) is a possible
(though not necessary) variant policy. I think (iii) would not only
be unnecessary but would simply act as yet another big gratuitous retardant
on something that should already have happened yesterday.

> It is not clear to me why they cannot (as specified in the SPARC
> Author's Addendum
> 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.

Insisting on the publisher's PDF is not only unnecessary and a further
gratuitous retardant, but it will not cut down on the (in any case small)
number of keystrokes one bit:

    Carr, L. and Harnad, S. (2005) Keystroke Economy: A Study of the
    Time and Effort Involved in Self-Archiving.

It averages 6-10 minutes to deposit the metadata (authorname, title,
journalname, date, etc.), plus one keystroke to attach or import the
full-text -- irrespective of whether it is the author's postprint or
the publisher's PDF. (Second and later papers are even faster.)

My own guess is that the lion's share of the hesitation and speculation
about self-archiving comes from never having tried it, and instead merely
imagined it. This is why DemoPrints was set up, as an archive for anyone
to try it, so they will know what they are talking about! (Might be a
good idea for you to try it too, Richard! You register first, as with
all archives, and then you can do the keystrokes: Please let me know
the timing!)

> 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-a-vis rights
> does not exist even amongst funders.

Two unclarities don't make a clarity! Yes, NIH was unclear on a lot of
things, including rights, but they made the unwise and arbitrary decision
to require (and eventually only request) self-archiving in a central 3rd-party
archive, PubMed Central (not the author's, nor the author's employer's,
but a 3rd party's -- the funder's). This served to invite objections
regarding 3rd-party-rights issues -- bogus, if they had been properly
thought through, but as it happens, not properly thought through, just
sufficient to be used as a pretext for downgrading the requirement to
a request, and for interposing first a 6-month, then a 12-month embargo,
turning the what had started as and NIH Open Access requirement into merely
a Back Access request.

The right way to have gone about it would have been to require *immediate*
self-archiving (upon acceptance for publication) in the author's own
institutional repository, as a precondition for NIH grant-fulfilment,
with a strong encouragement to make the self-archived full text OA.

(NIH could then have harvested the metadata and full-text for whatever
central enhancement it may have wished to do, to make it available also
through PubMed Central. Embargoes would not then block immediate access
to the author's institutional version; there would simply be a delay
before the enhanced PubMed Central version was available. Nor would the 8%
tail have been able to wag the 92% dog.)

This is the strategic policy error that the Berlin 3 policy went on
to correct, and the unclarity that it thereby dispelled:

> 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.

A. There is no embargo for 92% of papers. (Richard has multiplied the
number of embargoes in his own mind, but they are not there in the actual
publisher policy data.)

B. For the 8% of papers in journals that are not yet green, the only
thing researchers need to not-ignore is the requirement to perform the
keystrokes for depositing their metadata and full-texts in their own
institutional repositories. Whether they choose (i) to make the full-texts
of that 8% of papers OA, or they choose (ii) to try to re-negotiate DRM
for them with their publishers, or they choose (iii) to keep doing the
keystrokes to email the eprint to all their eprint-requesters (who will
have seen the metadata, which are always OA), is left up to the authors.

C. If the physicists since 1991 -- or the computer scientists since
even earlier, in the late 1980's -- had been foolish enough to sit on
their hands waiting for a "court ruling" instead of simply going ahead
and self-archiving their preprints and postprints, hundreds of thousands
of papers would have needlessly lost 15 years worth research impact and
progress today -- and we would all be even worse off than we are today!

> It is worth noting that three of the recommendations
> made by the much-applauded UK Select Committee Report
> addressed the issue of rights.

The US Select Committee report is much-applauded for its wise, simple,
correct, and immediately implementable recommendation to mandate immediate
institutional self-archiving (and to encourage/support OA journal publishing
where possible):

It was not much-applauded for all the needless and distracting excess
verbiage in which that simple, straight-forward recommendation --
virtually identical to the Berlin 3 recommendation -- was wrapped:

> 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 is actually a very reasonable recommendation, with exactly the
right priorities. Notice that it does not recommend that this further
research on the potential impact of a potential copyright-retention
policy be performed *before* or *instead of* or as a *precondition for*
the recommended self-archiving mandate. It quite sensibly recommends
this bit of research to be performed in the background, in parallel. Nor
does it prejudge the outcome; it merely says that if the outcome does
not prove to be too negative, a copyright-retention policy could then
be mandated too. Who can disagree with that?

But meanwhile, the priority remains an immediate self-archiving mandate.

> 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
> ( 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*.

As I have been at some pains here to show, copyright retention is
irrelevant and unnecessary for 92% of OA's target content today. Immediate
self-archiving is the immediate, high-priority solution there.

It would be just fine if RCUK followed the Select Committee's recommendation
to mandate immediate institutional self-archiving and also recommended
doing further research on what would be the impact of mandating
copyright-retention as well.

> 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.

The issue now is *priority itself* -- not whether or not rights
are relevant in any way to OA. Richard, I can assure you that if
the reality had been the other way round -- with only 8% of journals
giving their green light to self-archiving -- I too would would give
copyright-retention a higher priority. But that just isn't the reality!

The reality is that 92% of journals have given self-archiving their
green light, yet 85% of authors are still at a standstill. Prodding
them needlessly and irrelevantly to move in the uncertain direction
of negotiating copyright-retention when they are not even moving on
self-archiving where the light is already green just seems to be giving
them one more reason to remain stationary.

I know you weren't recommending that the 15% who *are* self-archiving
should stop and renegotiate DRM instead! But the 15% self-archivers are
not the problem: The 85% non-self-archivers are. And what is needed
to set them in motion is an institutional keystroke mandate, not yet
another thing they can stall on (and this time a 92% unnecessary thing)!

Stevan Harnad
Received on Sun Apr 24 2005 - 18:52:41 BST

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