Open Access Archivangelism

If supplying eprints to requesters could be delegated to 3rd parties like Repository Managers to perform automatically, then they would become violations of copyright contracts.

What makes the eprint-request Button legal is the fact that it is the author who decides, in each individual instance, whether or not to comply with an individual eprint request for his own work; it does not happen automatically.

Think about it: If it were just the fact of requesters having to do two keystrokes for access instead of just one (OA), then the compliance keystroke might as well have been done by software rather than the Repository Manager! And that would certainly not be compliance with a publisher OA embargo. "Almost OA" would just become 2-stroke OA.

No. What makes the eprint-request Button both legal and subversive is that it is not 3rd-party piracy (by either a Repository Manager or an automatic computer programme) but 1st-party provision of individual copies, to individual requesters, for research purposes, by the author, in each individual instance: the latter alone continues the long accepted tradition of reprint-provision by scholars and scientists to their own work.

If reprint-request cards had been mailed instead to 3rd-parties who simply photocopied anyone's articles and mailed them to requesters (with or without a fee) the practice would have been attacked in the courts by publishers as piracy long ago.

The best way to undermine the Button as a remedy against publisher OA mandates, and to empower the publishing lobby to block it, would be to conflate it with 2-stroke 3rd-party OA!

That practice should never be recommended.

Rather, make crystal clear the fundamental difference between 1st-party give-away and 3rd-party rip-off.

[Parenthetically: Of course it is true that all these legal and technical distinctions are trivial nonsense! It is an ineluctable fact that the online PostGutenberg medium has made technically and economically possible and easily feasible what was technically and economically impossible in the Gutenberg medium: to make all refereed research articles -- each, without exception, an author give-away, written purely for research impact rather than royalty income -- immediately accessible to all would-be users, not just to subscribers: OA. That outcome is both optimal and inevitable for research; researchers; their institutions; their funders; the R&D industry; students; teachers; journalists; the developing world; access-denied scholars and scientists; the general public; research uptake, productivity, impact and progress; and the tax-payers who fund the research. The only parties with whose interests that optimal outcome is in conflict are the refereed-research publishers who had been providing an essential service to research in the Gutenberg era. It is that publishing "tail" that is now trying to wag the research "dog," to deter and delay what is optimal and inevitable for research for as long as possible, by invoking Gutenberg-era pseudo-legal pseudo-technicalities to try to embargo OA, by holding it hostage to their accustomed revenue streams and modus operandi. OA mandates, the immediate-deposit clause, and the eprint-request Button are the research community's means of mooting these delay tactics and hastening the natural evolution to the optimal and inevitable outcome in the PostGutenberg era.]

Sale, A., Couture, M., Rodrigues, E., Carr, L. and Harnad, S. (2012) Open Access Mandates and the "Fair Dealing" Button. In: Dynamic Fair Dealing: Creating Canadian Culture Online (Rosemary J. Coombe & Darren Wershler, Eds.)

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On Thu, Aug 8, 2013 at 8:15 AM, Joseph Greene wrote in JISC-REPOSITORIES:

For what it’s worth, we recently did some investigation into this to try and find a loop-hole. We looked at it from an ILL point of view, e-journal subscription licensing and legal deposit provision and came to the conclusion that there is no loop-hole to exploit in traditional library service provision; if we were to implement the button it would have to be author mediated, not librarian mediated. Guess it would have to be stated in the CTA.

But why even try to search for a "loophole" that would allow the fulfillment of Button-press eprint-requests from users to be taken out of the hands of the author and put into the hands of a 3rd party?

Not only would that have made the Button illegal, thereby defeating its purpose in mooting publisher embargoes.

It would also have deprived the author of a useful metric of research impact: number of eprint requests (not quite the same thing as number of downloads).

(The eprint-request count is perhaps even a bit of a 2-edged sword, in that some authors may actually come to prefer the Button to OA, because of the feedback it provides as to who is requesting their work! We can be fairly confident, though, that the growth of OA mandates worldwide -- and with it the growth of immediate-OA as well as of Almost-OA from Button-generated eprint-requests -- will in most cases increase the pressure for immediate-OA, hastening the demise of OA embargoes, and with it the need for the Button.)

So, please, leave well enough alone. Mandate deposit immediately upon acceptance for publication, but otherwise, having mandated the N-1 of the author keystrokes required for depositing the paper itself, with its metadata, leave the Nth keystroke (to fulfill Button-mediated eprint requests) to the author.

(I don't even think it's a good idea for the library to relieve the author of the responsibility to make the first N-1 keystrokes for depositing the paper itself, though this would certainly not be illegal: We are talking about a few extra minutes worth of keystrokes per paper -- over and above all the keystrokes of writing and revising it. Authors can delegate those N-1 keystrokes to secretaries, research assistants or students, if they like, but if they are instead left entirely to the library then immediate-deposit will not become the natural milestone in the author's research cycle that it needs to become, in order to ensure that the deposit is done at all: The dated acceptance letter from the journal is sent to the author. That sets the date of immediate-deposit, and also determines which version is the final, accepted one. There is publication lag. The journal's actual publication date is uncertain; it may not coincide with the calendar date of the journal issue; and it could be as much as a year or longer after acceptance. In other words, the indeterminacy of the journal publication date could be even longer than OA embargoes.)

(One of the flaws in the Harvard-style mandate -- OA rights reservation by default, with an author opt-out option -- is that instead of mandating that authors deposit in the repository, it mandates that they provide refereed draft to the Provost. But the Provosts have been sitting on those refereed drafts, again even longer than the embargoes they were meant to circumvent, instead of making them immediately OA, or at least Almost-OA.)

Mandate immediate-deposit and leave the rest in the hands of the author.

Put all administrative efforts instead into monitoring mandate compliance -- by systematically collecting the dated acceptance letters instead of the papers themselves, and ensuring that the repository deposit-date is within a few days or weeks of the acceptance date.

Stevan Harnad