Copyright

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SUMMARY: Green OA self-archiving removes not just "most" but all the "permission barriers" pertinent to research use.
   If "naked" (unlicensed) content on the web were really a barrier to use, we would be hearing about an urgent need to license all web content (e.g. advertisements, blogs). But the de facto default assumption since the advent of the web has been that if something is freely accessible online then you can download, print, store and otherwise "re-use" it.
   Far from perceiving themselves as being stuck behind "permission barriers" when they surf the web except when explicitly licensed to do otherwise, web users usually (wrongly) assume that they have even more rights than what comes with the free online territory: They will, for example, not only read, download, store, and print-off copyrighted web images, but also re-post them online, identically or in "derivative works," and sometimes even re-publish them in print publications. (You actually have to have shrill "You may NOT" notices to try to discourage users from going overboard like that!)
   Hence the "problem", if any, is precisely the reverse of what is being imagined by those who think that self-archived OA content risks not being used beyond on-screen reading unless it provides a formal permissive license over and above just being there, free for all on the web.
   The right to re-publish the verbatim text, online or on-paper, is not part of OA and never was, just as plagiarism or re-publishing a corrupted "derivative" version of the text is not and never was a part of OA, online or on-paper. OA's "unprecedented public good" is: free online access to what used to require paid on-paper access. This does not license re-publication or "derivative works" (collected or cut-pasted from the verbatim text), online or on paper (any more than it licenses the re-publication of copyrighted images). But the remarkable property of the new technology is that, for OA, such rights are not needed! For anyone, anywhere, can access (and print off) the online text, any time. Re-publication is not licensed, it is mooted by the properties of the new medium.
   What is left is (1) harvesting, (2) data-mining and (3) "derivative works." Harvesting likewise comes with the territory. (Google did not have to be licensed to harvest the rest of the web, hence needs no special license for OA content.) The same is true for other forms of data-mining by harvesting robots. For the publication of "derivative works," the rule is much the same as for copyrighted web images: Re-publication of verbatim OA texts, online or on paper, is not allowed without permission -- but it is not needed either, because a collection of URLs pointing to the OA URL serves the same function as re-publication.
   Corrupted, improved or otherwise altered versions of the OA texts? Apart from attributed fair-use excerpts, that is not allowed without the author's permission either. But what would ever have made anyone think that the invention of a new technology that would allow free and unlimited access to authors' give-away texts would mean that authors would all want to license that those texts, besides being freely accessible to all users, should be alterable or corruptible, ad lib? Surely we are happier with requiring specific case-by-case permission for such further uses, rather than a blanket license under the guise of "OA"?
   "Fair use" (like "copying") was a paper-based notion. In the case of the online medium, "fair use" quite naturally, indeed unavoidably, expands to include everything else that comes with the freely accessible online territory -- but that only means access and personal use, not re-posting (online), re-publishing (on paper), or perturbing that freely accessible content (online or on paper) without the author's permission -- apart from freely re-distributing its URL.

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In Open Access News, Peter Suber wrote (by way of reply to my posting):

PS: "Comments. I hope no one minds if I reprint my comments from June 12 2007 in which I responded in detail to a very similar post by Stevan:

"Stevan isn't saying that OA doesn't or shouldn't remove permission barriers. He's saying that removing price barriers (making work accessible online free of charge) already does most or all of the work of removing permission barriers and therefore that no extra steps are needed."

So far this is exactly correct -- except I would definitely say that Green OA self-archiving removes not just "most" but all the "permission barriers" pertinent to research use, which is what OA is all about. Remember that there is also a "permission barrier" to re-publishing in print, but OA is not and never was intended to address that!

PS: "The chief problem with this view is the law. If a work is online without a special license or permission statement, then either it stands or appears to stand under an all-rights-reserved copyright. The only assured rights for users are those collected under fair use or fair dealing. These rights are far fewer and less adequate than OA contemplates, and in any case the boundaries of fair use and fair dealing are vague and contestable."

If "naked" (unlicensed) content on the web is really a barrier to use, how come we are not hearing about the need to license all web content (e.g. advertisements, blogs) because people are otherwise afraid to download, print, store and otherwise "re-use" them? (Answer: Because people are doing all those things, without hesitation.)

I think the truth is the exact opposite! That the default option, if something is freely accessible on the web, is that it's fine to do all those other things that come with it, and then some. (You can't even view web content without downloading and "storing" at least for long enough to read, yet that downloading and storing are not explicitly licensed!)

Far from perceiving themselves as being stuck behind "permission barriers" when they surf the web except when explicitly license to do otherwise, web users usually (wrongly) assume that they have even more rights than what comes with the territory: They will, for example, not only read, download, store, and print copyrighted web images, but also re-post them online, identically or in "derivative" form, and sometimes even re-publish them in print publications, identically or in "derivative" form. You actually have to have shrill "you may not" notices to try to discourage them from going overboard like that!

Now I have no particular interest in these excesses one way or the other (either to cultivate them or to curb them). But I think that they clearly illustrate that the "problem", if any, is precisely the reverse of what is being imagined by those who think that self-archived OA content needs a formal permissive license over and above just being there, free for all on the web, otherwise it risks not being used beyond on-screen reading! All seven individual uses I described in my earlier posting (as well as the two robotic ones) can be and are being fully exercised for all Green OA content today -- and there just aren't any further uses to which OA can justifiably lay claim (as OA).

PS: "This legal problem leads to a practical problem: conscientious users will feel obliged to err on the side of asking permission and sometimes even paying permission fees (hurdles that OA is designed to remove) or to err on the side of non-use (further damaging research and scholarship). Either that, or conscientious users will feel pressure to become less conscientious. This may be happening, but it cannot be a strategy for a movement which claims that its central practices are lawful."

Paying permission fees for Green OA content? Paying whom?

I honestly cannot imagine who or what you have in mind here, Peter! I am conscientious about not re-using web-accessible images in re-postings or publications unless I know they are public domain or I have permission. But I (and every other researcher on the planet) don't give a second thought as to whether I may read, download, store, print-off, and re-use the contents -- but not re-post or re-publish the verbatim text (which is like the image) -- of journal articles we can access freely on the web.

I am not feigning puzzlement: I am truly baffled about why, when the reality is the exact opposite, OA advocates, of all people, would worry that web users might be too coy (or "conscientious") to do with OA texts exactly the same things that we all do with all other free web content -- and too coy or "conscientious" to do so specifically in the case OA texts, of all things, because they lack a formal license to do it (exactly as virtually all other web content lacks such a license!).

[Could it be, Peter, that when you think of "unlicensed OA content" you are thinking of hybrid Gray/Gold publishers, who take an author's money, but don't adopt the full Creative Commons License that that money has surely paid for? I would probably agree with you on such cases, but my paradigmatic case is not paid Gray/Gold OA but Green OA, where it does not matter what copyright transfer agreement an author has signed as long the journal endorses immediate Green OA self-archiving, as 62% already do. All the rest comes with the Green OA territory.]

I think part of the problem is that (some) OA advocates may indeed be over-reaching in what they are taking to be licensed by "OA". I make absolutely no bones about the fact that the right to re-publish the verbatim text, online or on-paper, is not part of OA and never was, just as plagiarism or re-publishing a corrupted "derivative" version of the text is not and never was a part of OA, online or on-paper. OA is a new capability opened up by a new medium. I quote your own stirring words:

"An old tradition and a new technology have converged to make possible an unprecedented public good. The old tradition is the willingness of scientists and scholars to publish the fruits of their research in scholarly journals without payment, for the sake of inquiry and knowledge. The new technology is the internet. The public good they make possible is the world-wide electronic distribution of the peer-reviewed journal literature and completely free and unrestricted access to it by all scientists, scholars, teachers, students, and other curious minds."

The unprecedented public good is free online access to what used to require paid on-paper access. This does not license re-publication or "derivative works" (cut-pasted from the verbatim text), online or on paper, but the remarkable property of the new technology is that it does not need to! For one of the other things that "comes with the [Green OA] territory" is that anyone, anywhere, can access (and print off) the online text, any time. Re-publication is not licensed, it is mooted. There is simply no need for it. (The worriers about licensing content for "course-packs" are still thinking the old way: OA content does not need a license to be put in a course-pack: The text does not need to be put in a course-pack! Only its URL does.)

So, having disposed of the red herring of a special license that is supposedly needed to allow downloading, storing, and printing-off of freely available web content, we now see that there is no need to license re-publishing either, either online or on paper. What is left? Harvesting, data-mining and derivative works. Harvesting, as noted, likewise comes with the territory. If google did not have to be licensed to harvest the rest of the web, why on earth would we imagine that it needed to be licensed to harvest OA content, of all things? Ditto for the data-mining by harvesting robots. (Individual data-mining on your downloaded copy is not even at issue.)

Now what about "derivative works"? Let's be specific: re-publication of verbatim OA texts, online or on paper? That is not allowed without permission -- but nor is it needed, because a collection of URLs does the trick just as well.

Altered or corrupted versions of the OA texts? Apart from attributed fair-use excerpts, that is not allowed without permission either. But what would ever have made anyone think that the invention of a new technology that would allow unlimited access to authors' give-away texts would mean that authors would all want to license that those texts, besides being accessible, should be alterable or corruptible, ad lib? Surely we are happier with requiring specific case-by-case permission for such further uses, rather than a blanket license under the guise of "OA"?

What uses are left that research or researchers could possibly want, as a general rule: Harvestability into a commercial, pay-to-use database? It seems to me that that is no longer an OA matter. Indeed, authors might prefer to license their content to free database providers in preference to commercial ones. But either way, that is not part of OA, which was about "completely free and unrestricted access to it by all scientists, scholars, teachers, students, and other curious minds." Nothing there about commercial interests.

PS: "This doesn't mean that articles in OA repositories without special licenses or permission statements may not be read or used. It means that users have access free of charge (a significant breakthrough) but are limited to fair use."

"Fair use" was a paper-based notion. In the case of the online medium, "fair use" quite naturally, indeed unavoidably, expands to include everything else that comes with the online territory. In the case of freely accessible web documents, that "fair use" simply includes downloadability, storeability, printability, and data-minability, for individuals; and, for harvesters: robotic harvestability, data-minability, and certain derivative services (though I would not venture to specify which, though they certainly include free boolean searchability). With the Green OA territory comes also the accessibility online to everyone everywhere, mooting forever all need for collections, course-packs, re-publications, or other such "derivative works," online or on paper. For individual "derivative works," some form of "fair use" criterion still has to apply to determine how much verbatim content is permissible without the original author's permission.

Stevan Harnad
American Scientist Open Access Forum

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[Update: See new definition of "Weak" and "Strong" OA, 29/4/2008]

SUMMARY: Not one, not two, but three of my valued OA comrades-at-arms have so far publicly registered their disagreement with my position on "re-use" rights. Here is my summary of the points at issue: Judicet Lector.
   Individual re-use capabilities: If a document's full-text is freely accessible online (OA), that means any individual can (1) access it, (2) read it, (3) download it, (4) store it (for personal use), (5) print it off (for personal use), (6) "data-mine" it and (7) re-use the results of the data-mining in further research publications (but they may not re-publish or re-sell the full-text itself: "derivative works" must instead link to its URL).
   Robotic harvestability: In addition, (8*) robotic harvesters like Google can harvest and index the freely available Web-based text, making it boolean full-text searchable. (9*) Robotic data-miners can also harvest the full-text, machine-analyse it, and re-use the results for research purposes (but they may not re-publish or re-sell the full-text itself: "derivative works" must instead link to its URL).
   OA is about access and use, not re-publication or re-sale: Online re-publishing or re-sale rights were never part of OA, any more than on-paper re-publishing or re-sale rights were; nor do they need to be, because of all the capabilities that come with the free online territory.
   The Green OA territory: Capabilities (1)-(9*) all come automatically with the Green OA territory. Hence there is no need to pay for Gold OA to have these capabilities, nor any need for further re-use rights beyond those already inherent in Green OA. Sixty-two percent of journals today already endorse immediate Green OA self-archiving.
   Gold OA includes Green OA: If you do elect to pay a publisher for Gold OA, you also get the right to deposit your refereed final draft ["postprint"] in your own OA Institutional Repository. Hence even here there is no need for further "re-use rights." (If you pay for "Gold OA" without also getting this Green OA, you have done something exceedingly foolish.)
   "Harvesting rights"? If authors self-archive their articles on the web, accessible freely (Green OA), then robots like Google can and do harvest and data-mine them, and have been doing so without exception or challenge, for years now.
   What about Gray publishers? With Gray publishers (i.e., neither Green nor Gold) the interim solution today is (i) Immediate Deposit (IDOA) Mandates, (ii) Closed Access deposit for Gray articles, and (iii) reliance on the semi-automatized "Email Eprint Request" ("Fair Use") Button to provide for individual researchers' usage and re-usage needs for these Gray articles during any Closed Access embargo interval (but note that the Fair Use Button cannot provide for robotic harvesting and data-mining of these embargoed full-texts).
   Extra Gold OA rights? For those articles published in the 38% of journals that are still non-Green today, I think that to rely on (i)-(iii) above is a far better interim strategy for attaining 100% OA globally than to pay hybrid Gray/Gold publishers for Gold OA today. But regardless of whether you agree that (i)-(iii) is the better strategy in such cases, what is not at issue either way is whether Gold OA itself requires or provides "re-use" rights over and above those capabilities already inherent in Green OA -- hence whether in paying for Gold OA one is indeed paying for something further that is needed for research, yet not already vouchsafed by Green OA.

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As not one, not two, but no fewer than three of my valued OA comrades-at-arms have so far publicly registered their disagreement with my position on one (possibly two) points of detail concerning "re-use" rights, it is perhaps worthwhile taking a closer look at these points to see exactly what is and is not at issue:

Individual re-use capabilities. The concern is about "re-use rights," but I prefer to speak of "re-use capabilities." My OA comrades suggest that these consist of more than just the ability to read, and they are certainly right about that: If a document is OA -- i.e., if its full-text is freely accessible online, immediately and permanently, webwide -- then that means that any individual, webwide, can (1) access the document online, (2) read it, (3) download it, (4) store it (for personal use), (5) print it off (for personal use), (6) "data-mine" it and (7) re-use the results of the data-crunching in further research and research publications (however, they may not re-publish or re-sell the full-text itself, in "derivative works," either online or in print, without permission, beyond a reasonable number of quoted/cited excerpts: instead, they may only link to the OA full-text's URL in such derivative works, leaving the user to click to access it).

Robotic harvestability. In addition to the individual re-use capabilities (1-7), there are the following: (8*) Robotic harvesters like Google can harvest the freely available Web-based text (exactly as they harvest all other texts that are freely available on the Web) and inverse-index it, thereby making it searchable by boolean full-text search in their search engines. (9*) Robotic data-miners can also harvest the text, machine-analyse it, and re-use the results of their data-crunching for research purposes in further research and research publications (however, they may not re-publish or re-sell the full-text itself, in "derivative works," either online or in print, without permission, beyond a reasonable number of quoted/cited excerpts: instead, they may only link to the OA full-text's URL in such derivative works, leaving the user to click to access it).

The Green OA territory. All the above -- (1)-(7) plus (8*)-(9*) -- already come automatically with the (Green) OA territory when a full-text is made freely accessible online, immediately and permanently, webwide. It is for this reason that I continue to insist -- and this is the fundamental point of disagreement with my three OA comrades -- that there is no need whatsoever for any further re-use rights beyond what already comes automatically with the Green OA territory. In particular, there is no need to pay extra for Gold OA, in order to "purchase" these "extra" re-use rights. Nor is there any need to add any further re-use rights to Gold OA copyright agreements (although formalizing the rights is always fine, and a good idea).

Gold OA includes Green OA. If you have paid a publisher for Gold OA, you have, among other things, certainly paid for the right to deposit your refereed final draft ["postprint"] in your own OA Institutional Repository (along with any XML tagging you may wish to add to facilitate usage, search, harvesting and data-mining): hence you already have (1)-(9*). Hence what you are paying for, if you elect to pay for Gold OA, is not extra re-use rights, but simply Gold OA, which already includes Green OA, which in turn already provides all the requisite re-use capabilities.

Gold OA without Green OA? If any author (or funder) were ever to pay for "Gold OA" without thereby also getting the publisher's blessing to deposit the refereed final draft (postprint) in the author's own Institutional OA Repository (Green OA), then that author (or funder) would be doing something exceedingly foolish. (I know of no "Gold OA" today that does not automatically include Green OA.) But, apart from that, paying for Gold OA is still an unnecessary expenditure today for all except those to whom money is no object and who consider paid Gold OA to be worth the cost because it helps promote Gold OA, reinforcing the fact that it is a potentially viable cost-recovery model. Gold OA itself is certainly not necessary for any re-use needs that are purportedly not fulfillable through Green OA alone.

Pay for Green OA rights? The second possible point of disagreement with my three OA comrades, a more minor one, would be about whether it is worth paying for Gold OA to a hybrid Gray/Gold publisher who does not endorse Green OA self-archiving except if paid for Gold OA: I'm inclined to say that Closed Access self-archiving in your Institutional Repository (IR), along with the IR's "Email Eprint Request" Button, is a much better strategy than paying such a hybrid Gray/Gold publisher for Gold OA in such cases, because it facilitates exception-free IDOA Deposit Mandates. But this is a less important point of disagreement than the logical, practical point about whether paid Gold OA is indeed needed for certain re-use rights.

"Harvesting rights"? I will close on the sole potentially substantive matter on which my three OA comrades do have at least a theoretical point -- but, I will argue, a point that has no practical import: The reason I put an asterisk after 8* and 9* is that it can be argued that whereas the individual uses (1) - (7) do indeed come with the territory if one makes a document freely accessible on the web, this does not necessarily cover robotic uses such as harvesting.

"Could?" is trumped by "Does." I will give a very simple and pragmatic answer: "Can," "could," "cannot" and "could not" are all trumped here by "does." My OA comrades are needlessly reasoning hypothetically in this case, when the objective evidence is already in: "If authors were to self-archive their articles on the web, freely accessibly (Green OA), as described above, could robots like Google harvest and data-mine them?" The answer is a resounding "yes": they could, and can, as demonstrated by that fact that they already do, without exception or challenge, and have been doing so for years now!

Articles vs. books. We are not talking here about the full-texts of books, ambivalently provided to Google by their publishers (and authors), or scanned directly by Google, with certain conditions imposed by their publishers and authors on their re-use. We are talking about authors' final drafts (postprints) of their peer-reviewed journal articles, self-archived free for all by their authors in order to maximize their accessibility, usage and impact. In the case of books, there can be and have been contentious harvesting issues. But in the case of self-archiving, not a single article's harvestability has been contested, and we already have a decade and a half of precedent and practice behind us in this. So those who are worrying about the need to formally guarantee Google's (and other harvesters') "right" to do what they are already doing, without exception or challenge, since the advent of the Web, are worrying about a notional obstacle, not a real one.

OA is not about or for re-publication or re-sale, online or in print; OA is about access and use. Before replying to insist that I am wrong about about "re-use" being a nonproblem for self-archived postprints, may I ask my readers please to recall (i) the parentheticals I carefully inserted earlier, concerning both individual users and harvesters: "(though they may not re-publish or re-sell the full-text itself, in "derivative works," either online or in print, without permission, beyond a reasonable number of quoted/cited excerpts: instead, they may only link to the OA full-text's URL in such derivative works, leaving the user to click to access it)". None of that is part of OA, nor has it ever been ("BBB" Declarations to the contrary notwithstanding). OA is a brand new possibility, opened up by a brand new medium: the Web. "Online re-publishing or re-sale rights" were never part of OA, any more than on-paper re-publishing or re-sale rights were -- nor do they need to be, because of everything that comes with the OA territory (i.e., with being freely accessible to one and all online).

What about Gray publishers? Recall also that (ii) Gold OA already includes Green OA (as part of what you are paying for) and that (iii) with Gray publishers (i.e., those that are neither Green nor Gold) the interim solution for now is Immediate Deposit mandates plus the semi-automatized "Email Eprint Request" (or "Fair Use") Button for any Closed Access deposits. That does provide for individual researchers' uses and re-uses even for this "Gray" literature (meaning non-Green, non-Gold journal articles) -- although it does not provide for robotic harvesting and data-mining of the (Closed Access) full-texts, just their metadata.

IDOA and the Button -- or Paid Gold OA? Here, as I said, my colleagues and I may agree to disagree on the second, minor point, as to whether (a) it is a better strategy to rely, for now, on mandated IDOA and the Button for articles published in non-Green journals (38%), trusting that that will eventually force those journals to go Green (62%)? or, rather, (b) it is a better strategy to pay for Gold OA right now? But note that what is not at issue either way is whether Gold OA itself requires or provides "re-use" rights over and above those capabilities already provided by Green OA -- hence whether in paying for Gold OA one is indeed paying for something further that is needed for research, but not already vouchsafed by Green OA.

Stevan Harnad
American Scientist Open Access Forum

On Tue, 9 Oct 2007 Andrew Albanese, Associate Editor, Library Journal, wrote:

"[J]ust writing to see if you have any thoughts on the UKPMC [UK PubMed Central] statement on re-use...seems a little unnecessary to me. Stating the obvious? Rather than say "copyright still applies," would it not have been more useful to issue guidelines on, say, how to craft a copyright clause that facilitates open access? Do these broad statements help anyone?"

I agree that the UKPMC re-use statement is unnecessary and stating the obvious. (Even advice on amending copyright clauses to facilitate Green OA self-archiving is not necessary as a precondition for self-archiving, or for mandating self-archiving, although it is a good idea to try to amend copyright agreements where feasible and desired -- hence good advice is always welcome.)

(1) To begin with, the UKPMC statement is about paid Gold OA, and (for reasons I have adduced many times before) I believe that -- except for those researchers and funders who are so well off that money is no object -- paying for Gold OA at this time is unnecessary and a waste of money (until and unless most or all of the institutional money that is currently being spent on subscriptions is released to pay for Gold OA).

(2) Successfully establishing a credible, high-quality fleet of paid Gold OA journals was definitely useful in order to demonstrate the principle of paid Gold OA as a feasible one (especially under the current financially straitened circumstance in which most of the potential Gold OA funds are still tied up in institutional journal subscriptions); but that does not change the fact that Gold OA is far from being either the fastest or surest way to scale up to 100% OA today.

(3) The fastest and surest way to provide 100% OA today is for authors to self-archive their (published) articles in their own Institutional Repositories [IRs] (not in Central Repositories [CRs] like PubMed Central or UKPMC: CRs should harvest from IRs) -- and for authors' institutions and funders to mandate that they self-archive.

(4) This Green OA self-archiving does not require the description or assertion of any new "re-use rights": All the requisite uses already come with the Green OA territory itself (i.e., with the full text being made freely accessible to all on the web).

So this is a lot of fuss and fanfare about nothing: details peculiar to paid Gold OA and to direct deposit in 3rd-party CRs like UKPMC. Not what the research community urgently needs today (100% OA), nor what will get us there.

Stevan Harnad
American Scientist Open Access Forum

Andrew Adams (2007) has written a powerful, relentless and devastating critique of (the Open Access aspects of) Kevin Taylor's (2007) "Copyright and research: an academic publisher's perspective." Adams cites other archivangelists in support of his position, but this lucid, timely, rigorous and compelling synthesis is entirely his own. It will be seen and cited as a landmark in the research community's delayed but inexorable transition to Open Access.

Taylor, K. (2007) Copyright and research: an academic publisher's perspective. SCRIPT-ed 4(2) 233-236

Adams, Andrew A, (2007) Copyright and research: an archivangelist's perspective. 4(3) SCRIPT-ed 285

(Kevin Taylor is Intellectual Property Director at Cambridge University Press, a publisher that is on the side of the angels insofar as its author self-archiving policy is concerned, which is as green as green can be. However, although Kevin's views on other aspects of copyright and publishing may well be irreproachable, his views on Open Access need substantial rethinking.)

Stevan Harnad
American Scientist Open Access Forum