Open Access Archivangelism

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Update (many thanks to Eloy Rodrigues).
Speech from German ambassador at Berlin 10
announced new German law for Open Access:

“The German government is currently introducing legislation guiding the implementation process of Open Access. It will take into account our constitutionally guaranteed rights, especially freedom of expression, freedom of scientific research and intellectual property rights. Against that background, the envisaged reform of our copyright and intellectual property law will, as a first step, most likely follow along the lines of the 'Green Road'...”

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We have heard it repeatedly claimed, without evidence or argument, that in Germany it would be illegal to mandate that authors self-archive their final drafts of peer-reviewed articles because it would be a "violation of academic freedom."

I have never believed this claim, and do not even think it is coherent.

A Green OA self-archiving mandate leaves authors free to publish whatever they wish and to publish it in whatever journal they wish. It merely requires them to deposit the final, accepted draft in an institutional repository.

(Most Green OA mandates don't even require the deposit to be made OA immediately: they allow it to be left in Closed Access during a publisher embargo period: About 60% of journals do not have OA embargoes; 40% have embargoes of from 6-12 months to several years or more.)

Hence the requirement to deposit is merely an administrative mandate -- like requiring that publications be submitted electronically rather than on paper, for performance evaluation. (Was that a violation of academic freedom in Germany too?)

The "illegal in Germany" claim has been made over and over, in and about Germany. It invariably turns out to be based on the incorrect assumption that it entails putting a constraint on authors' academic freedom. Instead of just repeating the claim, like hearsay, endlessly, I urge advocates and opponents of OA alike to first get it clear in their minds exactly what a Green OA self-archiving mandate mandates, and then to state explicitly how or why it violates authors' academic freedom.

But be careful not to conflate Green OA self-archiving mandates with Gold OA publishing mandates: The latter would require authors to publish in Gold OA journals rather than their journals of choice; or they would forbid authors to publish in journals that embargo Green OA. Such mandates would indeed be constraining authors' academic freedom.

But Gold OA publishing is not what most OA mandates require. They just require Green OA self-archiving. (See ROARMAP -- and you will see that there are already some Green OA mandates in Germany.)

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Hans Pfeiffenberger:

Law people… in Germany… claim that something like the NIH/Wellcome requirements would violate researchers' rights granted by article 5 of our constitution....

...Stevan, you should take note that I and others do not embrace that view about the illegallity. We report what people from German funding agencies, eager to put a mandate in their grant agreements, tell us about the views of their lawyers.

You may call this hearsay, but it is a matter of fact that any attempt to introduce stonger mandates have been turned down by these lawyers, citing the constitution. 

And yes, there have been university professors who have claimed  their freedom to publish being restricted when asked to publish electronically (!). The Heidelberger Appell (don't confuse with Heidelberg Appeal) is actually an ugly mashup of opposition to Google Books, Open Access and general resentment about missing respect for authors' rights "in the Internet". But if you read some of their blogs (!) you will find that it is actually about the perceived loss of their paper-based academic culture.

Unfortunatelly, the Heidelberger Appell was signed by lots of influential people.

Stevan Harnad:

On Constitutions, Hearsay and Mashups. Thanks for your reply, Hans. You wrote:

HP: "You may call this hearsay, but it is a matter of fact that any attempt [by]… German funding agencies… to introduce stonger mandates…in their grant agreements…  have been turned down by these lawyers, citing the constitution."

It's not hearsay that such attempts have indeed been made, and been turned down. What's hearsay is the basis on which the attempts have been turned down.

If it is not unconstitutional for a funder to require that the papers resulting from a grant be provided in electronic format rather than print format, it is not unconstitutional to require that they be provided by depositing them in a repository.

I would be very interested to hear whether any lawyer arguing against a Green OA mandate has provided the constitutional clause according to which requiring deposit would be unconstitutional. (If you ask, you will hear all kinds of responses about copyright, publisher contracts, author choice, embargoes, etc., all irrelevant, but none facing up to the very specific question I am asking. And if requiring deposit is not unconstitutional, then that is precisely what should be mandated [not copyright or contract renegotiation, or constraints on journal choice].)

HP: "And yes, there have been university professors who have claimed  their freedom to publish being restricted when asked to publish electronically (!). The Heidelberger Appell  (http://de.wikipedia.org/wiki/Heidelberger_Appell; don't confuse with Heidelberg Appeal) is actually an ugly mashup of opposition to Google Books, Open Access and general resentment about missing respect for authors' rights 'in the Internet'."

Yes, I know the Heidelberger Appell (Reuss's Ruse) well! It is indeed a mashup of journal articles and books -- again based on hearsay. Green OA self-archiving mandates pertain only to journal articles, all of which are written for research usage and impact, not author royalties.

See "Heidelberg Appeal Peeled" (2009).

Hans Pfeiffenberger:

Stevan, if I do understand your question "...whether any lawyer arguing against a Green OA mandate has provided the constitutional clause according to which requiring deposit would be unconstitutional.", then the answer is easy: It is paragraph 3 of article 5.

Roughly translated, it says: Art and science, research and teaching are free.

So, that is not hearsay. The question if this broad assertion can be regarded a foundation for the claims we discuss here could be answered only in court. But I think nobody is eager to put this to a test now. One thing is clear: Freedom of research is very high on the list of rights (right after religious freedom). It is number 5 of the 19 articles on "Grundrechte" (basic rights).

Stevan Harnad:

Is Peer Review Constitutional in Germany? But Hans, does "Art and science, research and teaching are free" in Germany mean: "Your research proposal has been accepted and funded on condition that you actually conduct the research, as proposed, and submit an annual report -- but you are free to take the money and not conduct the research, nor submit an annual report"?

Or do you think every failure to comply with grant fulfillment conditions would need to be tested in constitutional court in Germany as a potential violation of research freedom?

Or, to take it further, does a German researcher's constitutional "freedom of art, science, research and teaching" mean that he can refrain from doing any art, science, research and teaching at all, and continue to come in and collect his salary till his scheduled date of retirement, on the grounds that he is exercising his constitutional rights?

Is it unconstitutional in Germany, till tested, to withhold further research funding from a researcher who has not published any results of prior research?

Is "publish or perish" unconstitutional in Germany, hence peer reviewers may not use that -- or, for that matter, any -- criterion in deciding what German research proposal to fund, or what German research paper to accept for publication?

Is there no competition in research in Germany, because all researchers are free to do or not do whatever they wish?

I am mapping out the absurdity of these questions (which I am sure are never even asked in Germany -- just as it was never asked whether it would have been a violation of researchers' constitutional freedom to submit applications electronically instead of as hard copy) in order to show show how utterly arbitrary it is to claim that there is anything whatsoever about the requirement to deposit published research in the institutional repository that would be a potential violation of German researchers' constitutional freedom, and hence could not be adopted unless it were first tested in constitutional court. This is just nonsense unless German researchers simply have no rules of any kind at all.

In contrast to this, it's a good idea to give oneself examples of simple rules that would obviously be a violation of German researchers' constitutional freedom. And one such rule would be: "You are not free to publish what and where you wish" (apart, of course, from the need to meet the peer-reviewers' acceptance standards, if you wish to publish in a peer-reviewed journal).

The RCUK mandate that would say to a British researcher "You may not publish in a journal unless it either has a Gold OA publishing policy or it has a Green OA embargo of no more than 12 months" would indeed seem to be prima facie unconstitutional in Germany.

A repository-deposit mandate, however, certainly would not -- any more than would an electronic-submission mandate in place of a paper submission mandate (sic).

But Hans, I'm not disputing with you; I know you too find it absurd. I am simply disputing the credulousness of those who are ready to be dissuaded from adopting a Green OA mandate in Germany on the grounds that it would be unconstitutional, or that its constitutionality would first need to be tested in court.

Hans Pfeiffenberger:

Stevan, I am relieved that you understand that I too find it absurd. But there actually has been a case of a guy (Professor!) who almost claimed that he could "refrain from doing any art, science, research and teaching at all, and continue to come in and collect his salary till his scheduled date of retirement, on the grounds that he is exercising his constitutional rights?" If I remember correctly, he won.

So I am actually astounded that nobody has as yet brought a case to court against evaluation criteria which force him/her to publish in journals on a list maintained by a commercial company (TR) at their discretion.