Open Access Archivangelism

See this letter from 46 law professors and specialists in copyright law for a brilliant defense of the NIH Green OA Self-Archiving Mandate against the absurd charges of the publisher's lobby and its attorneys in the Conyers Bill.

I generally avoid the legal aspects of OA because I can see so clearly that 100% Green OA can be quickly and easily achieved without having to waste a single minute on legal obstacles (via the IDOA Mandate). But this is such an articulate and rigorous set of legal arguments that I could not resist posting them further just for the delight of the ineluctable logic alone.

Read, enjoy, admire, and rest assured that whether via the legalisticroute or just good, practical sense, OA will prevail. It is optimal, inevitable, and irresistible. The anti-OA lobby is wasting its money in trying to invoke law or laws to stop it; at best, they can just buy a bit more time. (But if universities and funders opt directly for IDOA mandates, that will deny the anti-OA lobby even that.)

Stevan Harnad
American Scientist Open Access Forum

PS Unless I am mistaken, one detects the unseen legal hand and mind of Peter Suber, plus a goodly dose of the seen hand and mind of Michael Carroll in the drafting of this legal and logical masterpiece.

Those who said Green OA Self-Archiving could not be mandated in Germany please take notice. Fraunhofer-Gesellschaft has been the first to do the "impossible" (from ROARMAP, via Informationsplattform Open Access and Peter Suber's Open Access News):

Fraunhofer-Gesellschaft (GERMANY* institutional-mandate)

Institution's/Department's OA Eprint Archives

Institution's/Department's OA Self-Archiving Policy

The policy follows the Berlin Declaration definition of OA.

FG "makes every effort" to provide OA to the full-text articles by its employees.

When FG employees publish in TA journals, copies "shall" be deposited in the FG repository, Fraunhofer ePrints. If the publisher insists, FG will respect an embargo of up to one year.

When FG employees publish articles, they are "expressly required to demand" the "right to further use of their own works."

FG "wholeheartedly supports" publishing in peer-reviewed OA journals.

FG managers are "urged to take a proactive stance" to help FG researchers make use of green and gold OA.

FG "is committed to providing the necessary financial, organization and non-material support" to implement its policy.

(By way of relief from the antics to lower the ante in the US Congress.)

"Australia ups the ante on global access to research"
Zoë Corbyn
Times Higher Education Supplement
18 September 2008

Stay tuned also for the

Open Access and Research Conference
Brisbane, Australia
24-25 September 2008.

The Conference is hosted by Open Access to Knowledge (OAK) Law Project an Australian Department of Education, Employment and Workplace Relations (DEEWR) funded project, the Queensland University of Technology (QUT) Division of Technology, Information and Learning Support and the QUT Faculty of Law.

[Forwarding from SPARC via Peter Suber's SPARC OA Forum. Also see the PDF edition.]

An Open Letter to the U.S. Congress
Signed by 33 Nobel Prize Winners
September 9th, 2008

Dear Members of Congress:

As scientists and Nobel Laureates we are writing today to support the NIH Public Access Policy that was instituted earlier this year as a Congressional mandate. This is one of the most important public access initiatives ever undertaken. Finally, scientists, physicians, health care workers, libraries, students, researchers and thousands of academic institutions and companies will have access to the published work of scientists who have been supported by NIH.

For scientists working at the cutting edge of knowledge, it is essential that they have unhindered access to the world's scientific literature. Increasingly, scientists and researchers at all but the most well-financed universities are finding it difficult to pay the escalating costs of subscriptions to the journals that provide their life blood. A major result of the NIH public access initiative is that increasing amounts of scientific knowledge are being made freely available to those who need to use it and through the internet the dissemination of that knowledge is now facile.

The clientele for this knowledge are not just an esoteric group of university scientists and researchers who are pushing forward the frontiers of knowledge. Increasingly, high school students preparing for their science fairs need access to this material so that they too can feel the thrill of research. Teachers preparing courses also need access to the most up-to-date science to augment the inevitably out-of-date textbooks. Most importantly, the lay public wants to know about research findings that may be pertinent to their own health diagnoses and treatment modalities.

The scientific literature is our communal heritage. It has been assembled by the painstaking work of hundreds of thousands of research scientists and the results are essential to the pursuit of science. The research breakthroughs that can lead to new treatments for disease, to better diagnostics or to innovative industrial applications depend completely on access not just to specialized literature, but rather to the complete published literature. A small finding in one field combined with a second finding in some completely unrelated field often triggers that "Eureka" moment that leads to a groundbreaking scientific advance. Public access makes this possible.

The current move by the publishers is wrong. The NIH came through with an enlightened policy that serves the best interest of science, the scientists who practice it, the students who read about it and the taxpayers who pay for it. The legislators who mandated this policy should be applauded and any attempts to weaken or reverse this policy should be halted.

Name, Category of Nobel Prize Awarded, Year

David Baltimore, Physiology or Medicine, 1975
Paul Berg, Chemistry, 1980
Michael Bishop, Physiology or Medicine, 1989
Gunter Blobel, Physiology or Medicine, 1999
Paul Boyer, Chemistry, 1997
Sydney Brenner, Physiology or Medicine, 2002
Mario Cappechi, Physiology or Medicine, 2007
Thomas Cech, Chemistry, 1989
Stanley Cohen, Physiology or Medicine, 1986
Robert Curl, Chemistry, 1996
Johann Deisenhofer, Chemistry, 1988
John Fenn, Chemistry, 2002
Edmond Fischer, Physiology or Medicine, 1992
Paul Greengard, Physiology or Medicine, 2000
Roger Guillemin, Physiology or Medicine, 1977
Leland Hartwell, Physiology or Medicine, 2001
Dudley Herschbach, Chemistry, 1986
Roald Hoffman, Chemistry, 1981
H. Robert Horvitz, Physiology or Medicine, 2002
Roger Kornberg, Chemistry, 2006
Harold Kroto, Chemistry, 1996
Roderick MacKinnon, Chemistry, 2003
Craig Mello, Physiology or Medicine, 2006
Kary Mullis, Chemistry, 1993
Joseph Murray, Physiology or Medicine, 1990
Marshall Nirenberg, Physiology or Medicine, 1968
Paul Nurse, Physiology or Medicine, 2001
Stanley Prusiner, Physiology or Medicine, 1997
Richard Roberts, Physiology or Medicine, 1993
Susumu Tonegawa, Physiology or Medicine, 1987
Hamilton Smith, Physiology or Medicine, 1978
Harold Varmus, Physiology or Medicine, 1989
James Watson, Physiology or Medicine, 1962

Press Contact:
Sir Richard Roberts
(Nobel Prize in Physiology or Medicine,1993)
Tel: (978) 380-7405
Fax: (978) 380-7406
Email: roberts -- neb.com

Fred Friend (JISC) wrote:

"Under your Plan B, what would stop publishers increasing the Closed Access embargo period to two years?"

The question is a good one, a natural one, and a pertinent one:

(1) "Plan B" is a contingency plan, in case the Conyers Bill should defeat the current NIH OA Policy (i.e., "Plan A").

(2) If the Conyers Bill were to pass, not only Plan A but all protection from publisher embargoes would be dead in the water (hence embargoes could in principle be made infinitely long).

(3) Plan B is accordingly designed to free the NIH Mandate from any dependence at all on publishers to decide when research (postprints) may be deposited.

(4) Plan B is to make all research postprints OA as soon as they can be, but to require that the actual deposit of all postprints in authors' Institutional Repositories be made immediately upon acceptance for publication, and to rely on almost-OA (via the semi-automatic "email eprint request" Button) for deposits that for any reason cannot be made OA immediately.

(5) With Immediate-Deposit mandated universally, "Almost-OA" (via the Button) serves research and public needs almost as well as OA during any embargo period.

(6) Universal Deposit mandates, plus the resulting enormous growth in usage and impact via OA and Almost-OA, will make it harder and harder for publishers to justify embargoes, while at the same time making embargoes virtually ineffectual:

(7) Hence embargoes will die their natural and well-deserved deaths once universal Deposit (Plan B) is mandated, by all research institutions and funders, worldwide, paving the way for full, immediate OA.

(8) It is far less clear whether Plan A [Delayed, Post-Embargo Deposit] can or will be universally adopted, by all research institutions and funders, worldwide -- nor whether, even if it were, it would ever lead to immediate-OA.

(9) Even with the Button, Delayed-Post-Embargo Mandates cannot provide immediate almost-OA. (NIH requires immediate "submission" but it is deposited -- in PubMed Central -- only after the embargo.)

(10) Hence it is in fact Plan A that locks in publisher embargoes, not Plan B!

Stevan Harnad
American Scientist Open Access Forum

Peter Suber wrote in OA News:

PS: " I agree that [a Deposit Mandate [DM] plus the "email eprint request" Button] would be a good fallback in the (unlikely) event that the Conyers bill passes. But I can't agree that it would 'hasten universal OA more effectively than the current NIH mandate'"

There are three issues here, not one!

(1) Replacing the current NIH mandate with a DM if the current mandate is defeated.

(2) Adding DM to the current NIH mandate even if it is not defeated.

(3) And the question of what would have been the effect of adopting DM in the first place.

On all three, I think the answer is very definitely that DM (whether added or substituted) would hasten universal OA more effectively. (And I actually think Peter would agree about all three of these; the seeming disagreement may be just a verbal one.)

Note that what I said was that an NIH Deposit Mandate (Immediate Deposit, with optional Closed Access plus the "Almost-OA" Button) would hasten universal OA far more effectively than the current NIH (Delayed OA-Deposit) Mandate.

I said universal OA because I was not referring merely to OA for NIH-funded research, nor to the effect of the NIH mandate only on NIH-funded research:

It is far easier for other funders and institutions to reach agreement on adopting Deposit Mandates of their own (Immediate Deposit of all articles, with the option of Closed Access and the "email eprint request" Button during any publisher embargo) because that completely removes copyright concerns, publishers, and the publisher's lobby from the decision loop. For embargoed articles, DM is merely an internal record-keeping mandate, yet with the Button it can also provide almost-OA -- and will almost certainly lead to full OA once the practice becomes universal.

So the first reason an NIH DM would be (and would have been) more effective is that, being free of legal obstacles, it is universally adoptable. Many funders and even institutions have instead copied, or tried to copy, the NIH Embargoed OA Mandate (with deposit mandated only after the publisher OA embargo has elapsed).

These legally encumbered mandates have either failed to be adopted elsewhere altogether, because of unresolved legal concerns (I know of many that have been under debate for years), or they have been adopted, cloning the NIH model, with the loss of the opportunity for Almost-OA during the embargoes (and an uncertainty about whether and when deposit actually takes place).

That represents a (i) a loss of any mandate at all, among the would-be mandates that failed to be adopted because of the avoidable copyright concerns, (ii) a loss of a good deal of Almost-OA during the embargo periods for the adopted mandates, and (iii) continuing delay in reaching universal OA, for which universal deposit is a necessary precondition!

So, yes, the NIH mandate would have been more effective, both for NIH OA and for universal OA, if it had been a DM: It would have generated immediate Almost-OA for NIH and more DMs worldwide. DM can still be added to the NIH mandate now, whether or not the Conyers Bill passes. If Conyers fails, that will make NIH an Immediate DM plus Embargoed OA Mandate -- which is much better than just an Embargoed OA Mandate. If Conyers passes, then it will make NIH just an Immediate DM, which is still better than no mandate for NIH, still provides Almost-OA during any embargo, and is far more conducive to consensus for universal adoption.

PS: " The NIH mandate provides (or will soon provide) OA to 100% of NIH-funded research, not OA to 63% and almost-OA to 37%"

If Conyers passes, then (as Peter agrees), DM is the right Plan B. But even if Conyers fails, why not add DM to the current NIH embargoed OA mandate, and have at least embargoed OA for 100% of NIH-funded research plus immediate almost-OA during the embargo (and a better mandate model for universal adoption)?

PS: " [Nor can I agree that] "there is no way to stop [an NIH immediate DM plus the Button] legally". ...if Congress wanted to, it could block closed-access deposits too."

Of course Congress can vote into law anything that the Supreme Court does not rule unconstitutional and the President does not veto. But it does seem a bit far-fetched to imagine that Congress would make a law to the effect that NIH is forbidden to require the deposit of a copy of the publications it funds, for internal record-keeping purposes. (And such a bizarre law would be sui generis, nothing to do with copyright.)

Nor does it seem likely that Congress would make a law that US researchers could no longer send reprints of their research to researchers requesting them, as researchers worldwide have been doing for a half century. (And this too would be an ad hoc law, though, at a stretch, it could be portrayed as a curb on Fair Use.)

PS: "However, I would like to see the NIH add the email request button even if the Conyers bill goes down in flames. Then the policy would provide embargoed OA to 100% of NIH-funded research, and almost-OA during the embargo period."

I think we are in complete agreement! Substitute DM + Button for the current NIH Mandate if Conyers fails, and add DM + Button even if it succeeds. (But that doesn't just mean the Button: It means adding the requirement to deposit immediately upon acceptance for publication.)

The only thing missing from this agreement is the one additional (but crucial) further facilitator of universal adoption of DMs: NIH should specify that its preferred mode of deposit is to deposit the postprint in the author's own Institutional Repository (if there is one) and then to port it automatically to NIH from there, via the SWORD protocol:

"One Small Step for NIH, One Giant Leap for Mankind"

Stevan Harnad
American Scientist Open Access Forum

    Re: Conyers Bill:  "Bill Would Block NIH Public Access Policy"
    (Science, 11 September)

Plan B for NIH Public Access Mandate: A Deposit Mandate
(And It's Stronger Than Plan A!)

Let us hope that the Conyers Bill, resulting from the publisher lobby's attempt to overturn the NIH Public Access Mandate, will not succeed. 

But in case it does, I would like to recommend making a small but far-reaching modification in the NIH mandate and its implementation that will effectively immunize it against any further publisher attempts to overturn it on legal grounds. And this Plan B will actually help hasten universal OA more effectively than the current NIH mandate:

(1) NIH should mandate deposit of the refereed final draft of all NIH-funded research, immediately upon acceptance for publication.

(2) But access to that deposited draft need only be made Open Access when there is no publisher embargo on making it Open Access; otherwise it may be made Closed Access.

(3) Open Access means that the full text of the deposited draft is freely accessible to anyone, webwide, immediately.

(4) Closed Access means that the full text of the deposited draft is visible and accessible only to the depositor and the depositor's employer and funder, for internal record-keeping and grant-fulfillment purposes. (Publishers have no say whatsoever in institutional and funder internal record-keeping.)

(5) For all deposits, however, both Open Access and Closed Access, the deposited article's metadata (author, title, journal, date. etc.) are Open Access, hence visible and accessible to anyone, webwide. 

(6) Now the essence of this strategy: NIH should also implement the "Email Eprint Request" Button, so that any would-be user, webwide, who reaches a link to a Closed Access article, can insert their email address in a box, indicate that a single copy of the postprint is being requested for research or health purposes, and click.

(7) That eprint request is then emailed by the repository software, automatically and immediately, to the author of the article, who receives an email with a URL in it that the author can then click if they wish to have the repository software automatically email one individual copy of that eprint to that individual requester.

(8) This is not Open Access (OA). But functionally, it is almost-OA. 

(9) Many journals (63%) already endorse immediate OA.

(10) Closed Access plus the Button will further provide almost-OA for the remaining 37%. 

(11) That means an NIH Deposit Mandate guarantees either immediate OA (63%) or almost-OA (37%) for 100% of NIH-funded research, and 100% of research's immediate-access needs are fulfilled, almost-immediately, during any embargo period, worldwide.

(12) In addition, an NIH Deposit Mandate will encourage universities in the US and worldwide to adopt Deposit Mandates too, for all of their research article output, not just NIH-funded biomedical research output. 

(13) The spread of such Deposit Mandates across institutions and funders globally will inevitably lead to a transition to universal OA for all research output as a natural matter of course, as the mandates ensure the universal practice of immediate deposit, and the resultant pressure for the benefits of instant access becomes irresistible.

(14) Lastly, to make the almost-OA Button even more powerful and easier to implement, NIH should stipulate that the preferred locus of deposit is the author's own Institutional Repository, which can then export the deposit to PubMed Central using the automatized SWORD protocol.

The fact is (and everyone will see this clearly in hindsight) that, all along, the online medium itself has made OA a foregone conclusion for research publications. There is no way to stop it legally. 

It is only technological short-sightedness that is making publishers and OA advocates alike imagine that the outcome is somehow a matter of law and legislation. It is not, and never has been. 

It is only because we have been taking an obsolete, paper-based view of it all that we have not realized that when authors wish it to be so, the Web itself has made it no longer possible to prevent researchers from freely distributing their own research findings, one way or the other. There is no law against an author giving away individual copies of his own writing for research purposes. Researchers have been doing it -- by mailing individual reprints to individual requesters -- for at least a half century.

And NIH need only mandate that authors deposit their (published research journal) writings: giving them away for free can be left to the individual author. The eventual outcome is obvious, optimal, natural, and inevitable.

I strongly urge OA advocates to united behind this back-up strategy. It will allow us to snatch victory from the jaws of defeat. 

Most OA self-archiving growth will be prospective, rather than retrospective initially, because it is the current and forward-going research articles that are most urgently needed for research progress, and that is what is being mandated by institutions and funders; the legacy corpus can and will follow thereafter.

Hence, insofar as the current and forward-going articles are concerned, the default option should be to deposit the author's final, peer-reviewed, revised, accepted draft (the postprint) in the author's Open Access Institutional Repository, not necessarily or even preferentially the publisher's PDF.

The author's postprint is the draft with the fewest publisher constraints (and any publisher endorsement of making the PDF OA automatically covers the postprint too).

And, as Alma Swan and Cliff Lynch have pointed out, the PDF is the least useful for data-mining.

And, as can never be pointed out often enough, the purpose of OA self-archiving is the enhancement of access, usage and impact of the research, not the digital preservation of the publisher's PDF! The postprint is a copy, not the original.

(For legacy deposits by authors who no longer have a digital draft of older articles, formatting the PDF, or scanning/OCR and reformatting, are obvious options.)

Stevan Harnad
American Scientist Open Access Forum

(Thanks to Colin Steele for forwarding this and to Glen Newton for the excerpting.)

---

The Australian minister for Innovation, Industry, Science and Research, Kim Carr spoke about this report in a speech released yesterday. Full text here.

It is embodied in a series of recommendations aimed at unlocking public information and content, including the results of publicly funded research.

The review panel recommends making this material available under a creative commons licence through:

machine searchable repositories, especially for scientific papers and data

and the internet, where it would be freely available to the world.

...The arguments for stepping out first on open access are the same as the arguments for stepping out first on emissions trading – the more willing we are to show leadership on this, we more chance we have of persuading other countries to reciprocate.

This speech reflects a number of recommendations in the report:

Recommendation 7.7: Australia should establish a National Information Strategy to optimise the flow of information in the Australian economy. The fundamental aim of a National Information Strategy should be to: ·utilise the principles of targeted transparency and the development of auditable standards to maximise the flow of information in private markets about product quality; and ·maximise the flow of government generated information, research, and content for the benefit of users (including private sector resellers of information).

Recommendation 7.8: Australian governments should adopt international standards of open publishing as far as possible. Material released for public information by Australian governments should be released under a creative commons licence.

Recommendation 7.9: Funding models and institutional mandates should recognise the research and innovation role and contributions of cultural agencies and institutions responsible for information repositories, physical collections or creative content and fund them accordingly.

Recommendation 7.10: A specific strategy for ensuring the scientific knowledge produced in Australia is placed in machine searchable repositories be developed and implemented using public funding agencies and universities as drivers.

Recommendation 7.14: To the maximum extent practicable, information, research and content funded by Australian governments including national collections should be made freely available over the internet as part of the global public commons. This should be done whilst the Australian Government encourages other countries to reciprocate by making their own contributions to the global digital pubic commons.

---

As ROARMAP indicates, the world leader in Open Access, both in time and in absolute size, is indisputably the United Kingdom: A UK Parliamentary Select Committee was the world's first governmental recommendation to mandate OA, in 2004. However, the UK government, under pressure from the publishing lobby, did not accept its own committee's recommendation. Nevertheless, six of the seven RCUK research funding councils went on to mandate OA anyway. The UK now has a total of 18 university and funder OA mandates (including the world's first OA mandate at Southampton's School of Electronics and Computer Science in 2003).

Australia, however, adopted the world's first university-wide OA mandate in 2004, and with its current total of 7 university and funder mandates along with this vigorous governmental support from Minister Carr, Australia is the world's relative, if not absolute leader in OA, by size as well as timing. And it is about to consolidate that leadership with an international Open Access and Research Conference in Brisbane next week, convened by Tom Cochrane, the DVC who engineered the world's first university OA mandate.

By way of comparison, the US, the country with the world's largest research output, has only five OA mandates (though that includes one from the NIH, the world's biggest biomedical research funder, as well as Faculty mandates from Harvard and Stanford). Universities are the sleeping giants, and the council of the European Universities Association (EUA) has unanimously recommended the adoption of an OA mandate by its 791 member universities in 46 countries -- but that mandate has not been adopted yet (although Professor Bernard Rentier, Rector of University of Liege is working on it, with EurOpenScholar).

But Australia looks poised now to be the one that sets all the dominoes falling worldwide.

Stevan Harnad
American Scientist Open Access Forum

Institutional Repositories (IRs) are for institutional research output (mostly their authors' final drafts of their published, peer-reviewed journal articles). IRs are not for institutional buy-in of the output of other institutions. (That would be an institutional library.) The way Open Access (OA) works is that an institution makes its own research output free for all online, in order to maximize its visibility, usage and impact. By symmetry, the institution's users also get access to the output of all other institutions' IRs, for free. No subscriptions, no fees, no consortia, no need for an institutional affiliation for anyone but the author of the work in the IR.

That’s OA. Almost-OA is when some of the IR material is still under a publisher embargo, so it is deposited as Closed Access instead of Open Access, and can be accessed using the IR’s almost-immediate “email eprint request” Button during the embargo. Almost-OA is not OA, but together with universal Immediate Deposit mandates, it will soon usher in universal OA.

In contrast, Joseph Esposito’s “Almost OA” is just a variant on institutional consortial licensing. It has no more to do with OA than being Almost Pregnant has to do with parity.

Stevan Harnad
American Scientist Open Access Forum