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

From: Stevan Harnad <>
Date: Tue, 18 Mar 2008 15:16:40 +0000

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,

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 just a little
> > obscure).
> >
> > The STM/PSP/ALPSP position statement was recently posted to Liblicense,
> > at:
> >
> > 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
> >
Received on Tue Mar 18 2008 - 15:20:21 GMT

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