Time to Update the BBB Definition of Open Access

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

SUMMARY: The definition of Open Access (OA) is still young, and not yet etched in stone; it stands only to benefit from a rational, corrective update. Parts of the (increasingly gilded) BBB formulation turn out to have been unnecessary, counterproductive, and even incoherent. The right to re-publish, re-sell and create derivative works may be essential for Free Online Scholarship (FOS), and for the Creative Commons, but they are not essential for OA, and it would be an unnecessary, self-imposed handicap to insist that they should be, merely raising barriers to OA where there are and need be none. It is a good idea for authors to retain extra rights for their published articles, wherever possible, but it is definitely not a necessary prerequisite for Green OA self-archiving, nor for Green OA self-archiving mandates.
   For the 62% of articles published in the Green journals that have explicitly endorsed the immediate OA self-archiving of the author's postprint, no further rights are needed to self-archive it, hence no further rights need to be negotiated as a precondition. And robotic harvesting and data-mining (Google, Scirus, OAIster) all come with the free online territory as surely as individual usage does.
   For the 38% of articles published in non-Green journals, authors can still deposit them in their Institutional Repositories (IRs), immediately upon acceptance for publication, setting access as Closed Access. With the help of the IR's "Email Eprint Request" Button, this provides for (1) accessing, (2) reading, (3) downloading, (4) storing (5) printing-off, (6) individual data-mining, and (7) re-using content (but not text) in further publications. That is still not OA; it is only almost-OA: Missing is full-text (8*) robotic harvesting and (9*) robotic data-mining.
   If all or most universities already mandated exception-free immediate-deposit as above (Open Access for the Green 62% and Closed Access for the non-Green 38%), there would be no problem at all about then going still further and trying to negotiate the retention of more rights -- even unnecessary ones! But instead declaring successful rights retention to be a precondition (by BBB "definition") would simply hamstring both self-archiving and the adoption of self-archiving mandates, and hence the advent of OA itself.

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On Mon, 15 Oct 2007, Frederick Friend wrote:

"I also agree with [Peter Suber, Peter Murray-Rust and Robert Kiley] that the UKPMC re-use agreement is vital for future academic developments. With hindsight we were too slow to pick up on the significance of the changes to copyright transfer agreements in the 1990s by which authors now assign all electronic rights to publishers. Blanket assigning of electronic rights has created and is still creating barriers in the electronic re-use of subscription content. We cannot afford to make the same mistake of neglect on the arrangements for academic re-use of OA content, whether green or gold."

I am afraid that this is more a matter of misunderstanding than of disagreement:

(1) The disagreement (with PS, PM-R and RK) was not about whether or not it is a good idea for the author to retain certain electronic rights. (It is a good idea for the author to do so, wherever possible. However, rights-retention is not a necessary prerequisite for Green OA self-archiving, nor for Green OA self-archiving mandates. Hence it would be a big mistake to imply otherwise: i.e., to imply that authors cannot self-archive, and/or their institutions/funders cannot mandate that they self-archive, until/unless the author successfully negotiates rights-retention. That would not only be incorrect, but it would be a gratuitous deterrent to self-archiving and to self-archiving mandates, hence to OA.)

(2) The disagreement was instead about:

(2a) whether or not certain electronic rights (not the same rights as in (1), above, by the way!), provided by certain Gold OA copyright agreements, were indeed necessary in order for research and researchers to derive the full benefits of OA (they are not)

and

(2b) whether or not there existed any further necessary rights or capabilities over and above those already inherent in Green OA self-archiving -- rights that therefore either had to be successfully negotiated with a non-OA publisher or had to be purchased from a Gold OA publisher in order to render an article OA (there are none)

I am sorry to sound like a pedant, but these details are devilishly important, and need to be understood quite explicitly:

Concerning (1) (i.e., rights retention as a prerequisite to Green OA self-archiving), what I said was that for the 62% of articles published in Green journals -- i.e., those that have explicitly endorsed the immediate OA self-archiving of the postprint (whether final draft or PDF) -- no further rights are needed to self-archive them, hence no further rights need to be negotiated as a precondition for self-archiving. The self-archived work is "protected" by standard copyright, and it is also OA, with all the attendant usage capabilities (of which I listed nine, covering all uses that research and researchers require, which are also all the self-same uses for which OA itself was proposed).

I also said that for the 38% of articles published in non-Green journals -- i.e., those journals that have not yet explicitly endorsed the immediate OA self-archiving, by the author, of the postprint (whether final draft or PDF) -- the strategy that I recommend is (a) mandated Immediate Deposit, Optional Closed Access and reliance on the semi-automatic "Email Eprint Request" Button to cover usage needs during the embargo.

I agreed, however, that it is possible to disagree on this strategic point, and to prefer instead (b) to try to negotiate rights retention with the non-Green publisher or else to (c) publish instead with a Gold OA publisher that provides the requisite rights. There is of course nothing at all wrong with strategy (b) and/or (c) as a matter of individual choice in each case. But strategy (a) is intended as the default strategy for facilitating exception-free self-archiving, and especially for facilitating the adoption of legal-objection-immune, exception-free self-archiving mandates.

So far, the only "right" at issue is the right to self-archive -- the right to provide immediate Green OA. It is that Green OA that I was arguing was sufficient to provide full OA (and the 62% of journals that are Green have already endorsed it.)

But now we come to (2): certain "re-use" rights and capabilities that purportedly go beyond those that already come with the territory, with Green OA self-archiving. Now we are no longer speaking of the right to self-archive, obviously, but of the right to create certain kinds of "derivative works" that one may re-publish (and perhaps even re-sell).

What I said there was that the right to re-publish, re-sell, and create derivative works for re-publication or re-sale is not part of OA. They are something extra (approaching certain kinds of Creative Commons Licenses). Most important, those extra rights are not necessary for research and researchers, they go far beyond OA, and they would handicap OA's already too-slow progress towards universality if added as a gratuitous extra precondition on counting as "full-blooded OA."

The very idea that these extra rights are needed comes not from the intuitions of the library community about how to include subscription content in course-packs -- those needs are trivially fulfilled by inserting the URLs of Green OA postprints in the course-packs, instead of inserting the documents themselves! -- but from intuitions about data-mining from (some sectors) of the biological and chemical community (inspired largely by the data-sharing of the human genome project as well as similar chemical-structure data-sharing in chemistry).

There are very valid concerns about research data sharing: note that such data are typically not contained in published articles, but are supplements to them that until the online era had no way of being published at all, because the data-sets were too big. So the concern is about licensing these data to make them openly accessible and to prevent their ever becoming subject to the same access-barriers as subscription content.

This is a very important and valid goal but, strictly speaking, it is not an OA matter, because these research data are not part of the published content of journal articles! So, yes, providing online access to these data does definitely require explicit rights licensing, but no one is stopping their authors (the holders of the data) from adopting those licenses! (The appropriate CC licenses exist.) And there's certainly no reason to pay a Gold OA publisher for those extra rights or rights agreements for data, which are hitherto unpublished content that can now be licensed and self-archived directly.

This brings us to the second case, the case that I suspect those who see an extra rights problem here have most in mind: It concerns the content of published journal articles, both inasmuch as the articles may indeed contain some primary data, as opposed to merely summaries, descriptions and analyses, and inasmuch as the article texts themselves can be seen as constituting potential data. This is where data-mining rights and derivative-works rights come in: "Naked" Green OA -- simply making these published full-texts accessible online, free for all -- is not enough (think these theorists) to guarantee that robots can data-mine their contents and that the results can be made accessible (published, or re-published) as "derivative works," unless those extra "rights" (to data-mine and create derivative works) are explicitly licensed.

My reply is very simple: robotic harvesting and data-mining come with the free online territory as surely as individual use does. Remember that we are talking about authors' self-archived postprints here, not the publishers' proprietary PDFs, whether Gray or Gold. If the journal is Green, it endorses the author's right to deposit the postprint in his OA IR. The rest (individual accessibility, Google, Scirus, OAIster, robotic harvestability, and data-mining) all come with that Green OA territory. So the contention is not about the Green OA self-archiving of the postprints published in the 62% of journals that are Green.

Is the contention then about the 38% of articles published in non-Green journals? I agree at once that if the author feels he cannot make those articles Green OA immediately, and instead deposits them as Closed Access, then, with the help of the IR's "Email Eprint Request" Button, only re-use capabilities (1)-(7) [(1) accessing, (2) reading, (3) downloading, (4) storing (5) printing, (6) individual data-mining, and (7) re-using content (but not text) in further publications] are possible.

This is definitely not OA; it is merely almost-OA. Missing is full-text (8*) robotic harvesting and (9*) robotic data-mining. If, to try to avoid this outcome, an author who fully intends to deposit his postprint immediately upon acceptance regardless of the outcome, first elects to try to negotiate the retention of more rights with his publisher -- or even elects to publish with a paid Gold publisher rather than deposit as Closed Access, with almost-OA -- that's just fine!That author is intent on self-archiving either way. The problem with holding out for and insisting upon more rights is (1) the author who would not deposit except if the publisher was Green (or Gold), and -- even more important -- (2) the institutions that would not mandate depositing except if all publishers were already Green (or Gold).

It is those authors and those institutions that are the main retardants on universal OA today. If most universities already mandated immediate-deposit either way (OA or CA), I would do nothing but applaud the efforts to negotiate the retention of more rights -- even unnecessary ones! -- But it would still remain true that no rights retention at all was necessary in order to deposit all postprints (and attain almost-OA), and that only a publisher endorsement of Green OA self-archiving was needed to attain full OA (1-9*). And it would remain true that re-publication, re-sale and "derivative-works" rights had nothing to do with either OA or the real needs of research and researchers.

[I am not, by the way, dear readers, "adulterating" OA; I am accelerating it, whereas those who are needlessly raising the barriers are (unintentionally) retarding it. Nor do, did or will I ever -- even should the string of B's get still longer! -- accept those parts of the increasingly gilded BBB "definition" of OA that are and ever have been unnecessary or incoherent, hence counterproductive for OA itself -- although I shame-facedly confess to having failed to pick up on that incoherence immediately in B1. That's what comes of being slow-witted. Blackballed from B2, I (with many others) was merely window-dressing at B3, which was really just, by now, ritually reiterating B2. If there is any "permission" barrier at all, it is a psychological one, and it pertains only to the "permission" to provide Green OA, no more -- something I always carefully call "endorse" (or sometimes "bless") rather than "permit" or "allow," because I think that's all just a matter of Wizard of Ozery too, and will be seen to have been such in hindsight, once this maddenly molluscan trek to the optimal and inevitable is at long last behind us...]

One last point -- made in full respect and admiration for Peter Suber. Peter understands every word I am saying and always has. His position, of all the people on this planet, is closest to my own. But Peter in fact has grander goals than I do. His "FOS" (Free Online Scholarship) movement predated OA, and had a much bigger target: It included no less than all of scholarship, online: not just journal articles, but books, multimedia, teaching materials, everything. And the freedom was a greater freedom than freedom to access and use the scholarship.

I greatly value, and fully support Peter's wider goals. But I don't think they are just OA. They are FOS. (I shall be remembered only as an impatient, testy, parochial OA archivangelist, whereas Peter will be rightly recognised as the patient, temperate, ecumenical archangel of FOS.) But OA does have the virtue of being the easier, nearer, surer subgoal.

I think that every time a little divergence arises between Peter and me, it is always a variant of this: He still has his heart and mind set on FOS, and it is good that he does. Someone eventually has to fight that fight too. But OA is narrower than that, and it is also nearer; indeed it is within reach. Hence it is ever so important that we should not over-reach, trying to attain something that is further, and more complicated than OA, when we don't yet even have OA! For we thereby risk needlessly complicating and further delaying the already absurdly overdue attainment of OA.

I think that is what is behind our strategic difference on (1) whether OA requires the elimination of all "permission" barriers or (2) whether, after all, the elimination of all "price" barriers -- via Green OA self-archiving (which is and always has been my model, and my ever-faithful "intuition pump") -- does give us all the capabilities worth having, and worth holding out for. Re-publication rights and the right to create derivative works may be essential for FOS, and for the Creative Commons in general. But they are not essential for OA in particular; and it would be an unnecessary, self-imposed handicap to insist that they should be. That would merely raise barriers for OA where there are and need be none.

Stevan Harnad
American Scientist Open Access Forum