SUMMARY: The loophole in the proposed FRPAA, RCUK and European Commission self-archiving mandates is that publisher embargo policies can open-endedly determine when the research is deposited. Two small but crucial changes can correct this: (1) Mandate immediate deposit for all articles immediately upon acceptance for publication (rather than mandating deposit only after an interval determined by the publishers, or after a fixed 6-month embargo). (2) Only recommend (rather than mandate) immediately setting the access to each deposit as Open Access (OA): allow the option of setting access instead as Closed Access (CA) where deemed necessary. This separate "Dual Deposit/Release" (DD/R) policy requires that the full text and metadata be deposited immediately, not after a delay; and it requires that the metadata (only) be immediately set to Open Access, so they are visible and accessible worldwide immediately upon deposit; but it allows the option of not setting access to the full-text itself as OA immediately. It thereby transfers the force of any embargo/delay onto OA access-setting instead of leaving it on the deposit itself, which must be immediate. Nothing at all is lost, relative to the delayed-deposit mandates currently being proposed, but what is gained is systematic immediate deposit of the full texts -- plus the capability of providing individual access via user email-eprint requests to the author, semi-automatized by the Institutional Repository software.
ANON: " My primary aim is to develop a model OA legislation... I am consulting the FRPAA 2006 bill and other texts. In formal legislation, we generally avoid any loopholes or pitfalls that may have a counter-effect on the very objectives of the legislation."
Pre-emptively avoiding loopholes and pitfalls is indeed the optimal strategy. And it is precisely for that reason that instead of recommending that you emulate exactly the proposals of the
FRPAA, the
RCUK, or the
European Commission, which all still have some needless weaknesses as well as loopholes, I recommend that you change two of their parameters to make your own policy recommendation the optimal one:
The two changes are small but absolutely crucial:
(1) Mandate immediate deposit for all accepted papers (rather than mandating deposit only after an interval determined by the publishers, or after a fixed 6-month embargo).
(2) Only recommend (rather than mandate) immediately setting the access to each deposit as Open Access (OA): allow the option of setting access instead as Closed Access (CA) where deemed necessary (i.e., where it is thought that immediately setting access as OA would contravene the author's copyright agreement with the publisher).
This separate
Dual Deposit/Release (DD/R) policy requires that the full text and metadata be deposited immediately, not after a delay; and it requires that the
metadata (only) be immediately set to Open Access, so they are visible and accessible worldwide immediately upon deposit; but it allows the option of not setting access to the full-text itself as OA immediately. In effect, it thereby transfers the force of any embargo/delay onto OA
access-setting instead of onto the deposit itself, which (to repeat) must be immediate.
The US is probably the only country in the world that has enough collective weight to go even further, because it represents such a large proportion of the authorship of so many journals, and of the funding of so much published research: The US can, I think, with impunity put a cap (of six months, or even less) on the maximal allowable embargo period. The
Wellcome Trust has already done this, telling their authors: "If your publisher does not agree to a cap of 6 months on the embargo, choose another publisher!" Wellcome, however, has the advantage, for this admirable and bold move, that they are a private funder. So all an author can do, if he does not like the Wellcome's terms, is to choose another funder.
But the US Federal funding agencies are governmental, so they can be lobbied, not only by publishers but also by researchers and their institutions, if they object to the terms: And researchers may well object to being told that they cannot publish in the journal of their choice if it does not agree to a 6-month embargo cap!
But the
Dual Deposit/Release (DD/R) mandate removes even this possible obstacle to the adoption of the policy; for it does not require either switching publishers or contravening the terms of their copyright agreement. It allows embargoed access-setting but mandates immediate deposit (and then semi-automatic email-eprint requests in the repository software will take care of any gap-period in which the metadata are visible and accessible but the full-text is Closed Access).
I think this slight parametric change answers your remaining concerns.
ANON: "In the case of FRPAA 2006, one has to be dependent on the mercy of the journal publishers, presuming that 93% of them will immediately allow the researcher to deposit his research in OA. Please let us know how you have reached that figure."
That's 93% of journals, not publishers (as some publishers publish more journals than others). I have reached the figure on the basis of each journal's own official author self-archiving policy, as indexed, by journal as well as by policy, in the
Romeo directory, for over 9000 journals, including all the principal ones.
But note that the
Dual Deposit/Release (DD/R) policy would be immune to publisher objections and policies even if 100% of journals had had an embargo, because it does not mandate Open Access! It simply mandates immediate repository deposit, which is an internal record-keeping matter, and that is in no way the business of publishers or anyone else.
What gives the
Dual Deposit/Release (DD/R) policy its power is that (a) it also mandates the immediate deposit of the bibliographic metadata (author, title, journal name, date, etc.), which no one can embargo, and (b) the webwide, uniform visibility and accessibility of the metadata immediately makes the existence of the article visible as well, and allows each individual would-be user who finds that the article is Closed Access to use the semi-automatic
eprint-request button we have designed for the
GNU Eprints Institutional Repositories (since implemented for the
Dspace repository software as well, and easily implementable by all other repository softwares) to request that the author email him the full-text.
So whereas the dual mandatory-immediate-deposit plus optional-delayed-release policy does not mandate OA per se, it instead -- in exchange for immunity from all possible objections on the grounds of either copyright or author choice of journal -- requires immediate deposit in all cases, no exceptions or delays, and relies on (trivial) technology to fill any access-needs during any embargo-gap. (It is unlikely, by the way, that once the
Dual Deposit/Release mandate is widely adopted, embargoes will survive for very long -- and in the meanwhile, all usage needs will be filled by the software technology, using the unique capabilities of the new medium).
If the adoption of the proposed mandates instead keeps being delayed and delayed, as it has been now for the past 3 years, for the very reasons you are here raising, everywhere (except the Wellcome Trust plus the
six institutions that have already mandated self-archiving) -- and even if the mandates are adopted as
delayed deposit mandates (as the Wellcome policy is, with a cap of 6 months on the permissible delay) -- the result will be that embargoes will only become
more deeply entrenched instead of being defused, as they are by the mandatory-immediate-deposit plus optional-delayed-release policy, which fixes both the date of deposit and the practise of depositing for all authors and papers uniformly and optimally, allowing no exceptions.
It may be useful for you to bear in mind -- and also to inform your policy advisees -- that the real thing that has been holding back 100% OA for a dozen years now has not been copyright policy but
keystrokes: Authors have not been depositing their articles in their institutional (or central) repositories. Two international, cross-disciplinary
surveys for JISC by Key Perspectives have shown that most authors don't and won't self-archive spontaneously, but 95% of them will do see if/when mandated to do so by their funders and/or their institutions. And the actual experience of the (
few) institutions that have already gone ahead and mandated self-archiving confirms the predictions of these JISC surveys.
The self-archiving mandate should be thought of as a mandate to perform those all-important keystrokes -- for record-keeping as well as
metadata-exposing purposes -- immediately upon acceptance for publication, which is the natural date, the date when usage of the research can and should begin, and the date that provides a fixed, objective landmark for all papers.
(Swan et al. have written an excellent strategic analysis of the question of
institutional versus central repositories: There is also excellent further policy guidance here [
1] and [
2] )
Once a "Keystroke Mandate" becomes widely implemented, 100% OA will not be far behind; but keep delaying the keystrokes because of other worries, or over-reaching, and you only keep delaying 100% OA.
The timing of the deposit is now independent of any publisher embargo periods, which instead apply only to the timing of the Open Access-setting for the (Closed Access) full text. The policy need make no mention of embargo periods, except to recommend setting access OA immediately or as soon as possible.
ANON: "Nevertheless, a public law can not be dependent on the assumptions, if this 93% of publishers tomorrow decide not to allow researchers to deposit in OA, the law is then helpless."
Not the law I have just described! It is completely unaffected. Please also see also the
self-archiving FAQ on this very question.
ANON: "In summary, there is a difficulty in constructing a law that guarantees 100% of OA even if the researcher/research-institute is willing to do so."
What is needed right now is not a law that guarantees 100% OA; what is needed is a mandate that guarantees 100% immediate deposit of the full-texts and 100% immediate visibility of the metadata. Nature will take care of the rest.
But delaying and delaying the adoption of the policy (or weakening it to ineffectuality by allowing fixed or open-ended deposit-delays in order to comply with every possible embargo) is a way of guaranteeing that 100% OA will remain a long, long way off!
The obstacle is keystrokes, and what is needed is a
keystroke mandate, i.e., an immediate-deposit mandate, for internal record-keeping and external visibility purposes only. That is not an "OA law" but a law specifying conditions on the fulfilment conditions for receiving public funding for research: The resulting publications must be immediately deposited in an OAI Repository and must immediately make their metadata visible.
Once that law is in place, 100% OA will quickly ensue of its own accord. But keep delaying the law by agonising instead over what will allow immediate OA for the full text in all cases -- or what interval can be agreed upon for delayed deposit -- and 100% OA will be delayed for yet another needless decade,
ANON: "Moreover, the semi-automatic email is not open access as the term is being used in the legal texts or definition of OA. It depends on the will of the author/publishers et al and access is platform/ technology depended. A legislation has to be platform/ technology neutral/ independent."
You are quite right that immediate deposit, immediate access to the metadata, plus the email-eprint feature is not OA! But (1) it is almost OA, (2) it will rapidly usher in OA, and (3) it is infinitely more useful to research and researchers, now -- and for the very reasons that OA is so important and needed -- than continuing to delay and agonise over legislation that will somehow manage to formally accommodate publisher copyright agreements, and lobbies, and author choice, all at once, and in advance.
However, it is not true at all that the
Dual Deposit/Release "keystroke" mandate depends on the will of the publishers, nor that access is platform/technology dependent. All of OA, and indeed the definition of OA, is dependent on some technology (the Internet and the Web) and in particular, on the OAI protocol for metadata-harvesting and interoperability. Hence all Open Access Repositories are OAI-compliant. That's easy, free, and all that's needed.
And the mandate is platform-neutral too: It just requires immediate deposit of the full-text and immediate webwide visibility of the metadata. The rest will take care of itself.
As to dependence on the author's will:
All authors of
all 2.5 million annual articles in the world's 24,000 peer-reviewed journals want to have as many users and citers of their research as they possibly can. That is why, in paper days, they would take the time, trouble and expense to mail paper reprints to individual reprint requesters. With the
DD/R mandate, this is all reduced to one author keystroke, upon receiving the semi-automated eprint-request generated by the repository software. The only thing now standing in the way of that option today is the other N-1 keystrokes needed to deposit the full-text and the metadata into the repository. And that is what the
DD/R "keystroke" mandate is for!
Researchers never sought royalty revenue for their articles, and they never sought to deny access. Mandate the requisite N-1 keystrokes and they will do the Nth one happily for each individual eprint request (and to re-set access from Closed Access to Open Access when the embargo expires or they tire of doing the individual keystrokes -- whichever comes first!).
ANON: "In some cases, especially in social sciences, researchers build their papers on their research experiences from various sources, not necessarily with that of current research funding. So, can government law bind them in a strict legal sense to make their publications OA?"
No. A law based on conditions of funding (whether funding of research grants or funding of research or academic institutions) can have no power over what it does not fund. But it need not. The effects of a self-archiving mandate on funded research will propagate to non-funded research rapidly as the beneficial effects of Open Access on research accessibility, impact and progress are increasingly felt across the entire world research community.
Right now, to repeat: the only thing holding us back from the feeling of those beneficial effects, and from their propagation across disciplines and around the world, is
keystrokes -- not copyright: keystrokes. Hence an immediate-keystroke mandate is all that is needed.
The (proposed) law does not tell the fundee where to publish. (It is
already required that funded findings be published ["publish or perish"]). The discipline and research community dictates where to publish (in the highest quality peer-reviewed journal whose content and quality standards it successfully meets). The
DD/R mandate would add only that the fundee must deposit the publication (if it is an article rather than a book) in an OAI-compliant repository (preferably his own institutional IR) immediately upon acceptance for publication.
ANON: "If the journal publisher allows... the researcher to deposit the paper in [immediate] OA it is fine; otherwise the researcher is in danger of violating the copyright law of illegally distributing, reproducing, copying, extracting copyright material over the internet."
You are not talking above merely about
depositing but about OA-depositing (i.e., depositing
and setting access to the full-text immediately to OA rather than CA). So
if thus making the full-text freely available online would violate the copyright agreement with the publisher, the only thing the FRPAA can do, if it wishes to mandate immediate OA-deposit, is to require the fundee not to sign such an agreement (as the Wellcome Trust requires, for agreements with embargoes exceeding 6 months).
But such a requirement would in turn be open to the author/institutions objection that it constrains the author's free choice as to where to publish.
So the solution is to require deposit only (not OA-deposit), and merely to encourage OA-access setting whenever and as soon as possible.
There is no other current solution: only the endless pre-emptive debating about what the publisher would/should/could require and what the author would/should/could do -- in other words, the effective pre-emptive "embargo" on the very adoption of a self-archiving mandate that we have been stalled in now for three years! Continuing that debate simply invites more years of lobbying, delay, and accumulating access/impact loss.
What is needed is an immediate keystroke mandate, immune to debate or delay. (Then continue the debate while the keystroke mandate is having its natural effect.)
This ground has already been covered, over and over, many times before, in the past three years. There is no resolution, only inaction. It is time for action, and the Keystroke Mandate is the requisite action.
ANON: "So the solution to this problem cannot be within the technological systems of OA, [e.g., the email-eprint button of the IR software], but the OA Act would have to make exceptions for such cases. The FRPAA does not mention such exceptions - hence it needs to be rectified from this pitfall. A legal expert would be able to throw some light on it, I believe."
No, a (lawyer-dictated) inventory of provisos and exceptions will only make the mandate, confused, confusing and ineffectual: Immediate deposit of full text and metadata. No exceptions. No delays. And as access-setting is not at issue, publishers, hence author journal-choice, are both out of the loop.
Words stand in our way: The purpose of a Keystroke Mandate is of course Open Access. But call it an "Open Access Mandate" instead and you are up against the inventory of provisos and exceptions (that will in any case not add up to 100% OA). It is the tail wagging the dog. Mandate the immediate keystrokes, now, and then go back to debating the provisos and exceptions.
Nor has technology anything to do with it, other than the online medium itself, that new medium on which the very concept and possibility of OA are predicated (Open
Online Access). Read the opening words of the
BOAI statement: "An old tradition and a new technology have converged to make possible an unprecedented public good:
OAI-compliance is highly desirable, and easily feasible too, but need not be mentioned in any law, if you think it will produce a paralysing technology-dependence debate. Same for the trivial eprint-request button, implemented in both of the major free softwares for OAI IR creation (
Eprints and
Dspace)...
Just mandate the immediate keystrokes and nature will take care of all the rest...
Stevan Harnad
American Scientist Open Access Forum
