Copyright

Regardless of what one feels about photo copyright or about (nonhuman) animal (legal) personhood, the "monkey selfie" trial is absurd. The trivial counterexamples abound:

1. If a photographer sets up a camera so the sun's rays automatically trigger a photo of the sun, is it the sun's copyright?

2. Is it different if the "sun's" photo is of a tree? or of a monkey?

3. Is it different if the photo is triggered by acoustic triggers from thunder? or from someone's footsteps?

4. Is it different if it's time-lapse photography triggered by touch from the growth of a plant?

5. What has "selfie" to do with it? Doesn't it apply to any remote-triggered image by anyone or anything, of anything or anyone?

6. If the monkey deliberately triggered a photo to get a food-pellet would that be different from deliberately triggering it for a look at the photo? of self? of other? of a tree? of a file-photo? of a mirror?

7. Does it make any difference if it's a monkey (who does not recognize self in mirror or photo) or an ape (who does)? or an infant?

8. Or monkeys typing Shakespeare?

Perhaps copywriting deliberate, repeated finger-paintings treated as personal property by apes makes more sense, but it's on a slippery slope to copywriting vomiting on a canvas...

Re: Copyright: the immoveable barrier that open access advocates underestimated (Richard Poynder)

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Let’s simplify:

1. Stick to peer-reviewed research articles: that’s all FOA is or was ever about.

2. Copyright and re-use rights are and always have been a red herring in the FOA age.

3. All that’s needed is an FOA version of the peer-reviewed research article.

4. That’s the author’s peer-reviewed final draft.

5. The only thing needed from “journals” (or equivalent) is the adjudication and certification of the peer review.

6. That’s a service, not a product: Nothing to “copyright.”

7. To make the current house of copywrit (sic) cards collapse, all authors need do is make 4 (the author’s peer-reviewed final draft FOA (freely accessible online)

8. FOA immediately (upon “acceptance”) and permanently (“FIPATRAFTO”).

9. For the faint-hearted and superstitious, there’s the Copy-Request Button during any (bogus) publisher “embargo” on “OA.”

10. Like Copyright worries (2), Button worries are red herrings.

11. FOA is all that’s needed or was ever needed.

12. Once researchers, their institutions and their funders get round to providing FOA (= “Green, Gratis OA”), Fair Gold “OA” (peer-review service fees) and all the re-use rights researchers need will be within trivial reach.

(Waiting for researchers, their institutions and their funders to get their heads around this and to set their fingers in motion continues to be yawningly boring; please wake me when they get round to it...)

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Charles Oppenheim:
Stevan is not quite correct. Copyright IS relevant because the authors foolishly agree to assign (or give an exclusive licence) it to the publisher. For Stevan's proposal to work, they must stop doing that. If a researcher has foolishly given away that right, Stevan's No 7 onwards in principle cannot work. So amend Stevan's 12 point plan by adding a final sentence to his point 6, "UNDER NO CIRCUMSTANCES SHOULD THE AUTHOR ASSIGN COPYRIGHT TO THE PUBLISHER, OR GRANT IT AN EXCLUSIVE LICENCE TO THE WORK". Then his plan is legally watertight. I do agree with Stevan's final thoughts in brackets. I too am waiting.....

Stevan Harnad: Charles’s formal caveats are quite correct — for pedants and poltroons. But think: if the physicists in 1991 (or the computer scientists even earlier) had had the slightest inclination to give such reservations a single moment’s credence — instead of going ahead and doing exactly what they did (self-arxiving their preprints, and then their refereed final drafts, immediately, and not bothering with the publisher’s “version of record”), FOA would never have made even the modest strides it has made:

So let’s stop fussing about copyright and start self-archiving all our refereed final drafts immediately upon acceptance for publication! It’s 2017, almost 3 decades since good sense first erupted and prevailed in some intrepid subsets of the research community. Coraggio!

Apart from that (which should be done in any case), Charles is also right that it is foolish (and unnecessary) to assign copyright or grant an exclusive license to the publisher. The limited right to publish and sell the version of record, online and on paper, is more than right enough — and as much reward as they deserve for their one and only “value-added,” which is the administration of the peer review (which the peers provide for free, just as the author provides the text for free).

"I don't want free online access: I want free online access with re-use rights!

But we don't even have free online access yet...

"I don't want free online access: I want free online access with re-use rights!"

But free online access is part of free online access with re-use rights...

"I don't want free online access: I want free online access with re-use rights!"

But free online access is already within immediate reach and free online access with re-use rights is not...

"I don't want free online access: I want free online access with re-use rights!"

But free online access today will pave the way for free online access with re-use rights tomorrow...

"I don't want free online access: I want free online access with re-use rights!"

But re-use rights to only a fragment of the research in a field are near-useless...

"I don't want free online access: I want free online access with re-use rights!"

But publishers allowing authors to provide free online access and re-use rights can immediately be undercut by free-riding rival publishers; publishers allowing authors to provide free online access alone cannot...

"I don't want free online access: I want free online access with re-use rights!"

But publishers will sooner allow authors to provide free online access than allow them to provide free online access with re-use rights…

"I don't want free online access: I want free online access with re-use rights!"

But institutions and funders can sooner mandate free online access than free online access with re-use rights…

"I don't want free online access: I want free online access with re-use rights!"

But all non-subscribing users need free online access; not all or even most or many users need re-use rights...

"I don't want free online access: I want free online access with re-use rights!"

But all authors already want all non-subscribing users to have immediate free online access; not all or even most or many authors know or care about re-use rights yet...

"I don't want free online access: I want free online access with re-use rights!"

But free online access with re-use rights today entails paying publishers even more, over and above uncancellable subscriptions, out of scarce research funds, whereas free online access entails no extra cost...

"I don't want free online access: I want free online access with re-use rights!"

But free online access is better, even if free online access with re-use rights is best...

"I don't want the better: I want the best!"

But the better will pave the way for the best...

"I don't want the better: I want the best!"

But the better is already within reach and the best is not: why not grasp it?

"I don't want the better: I want the best!"

"The University of Calgary has been contacted by a company representing the publisher, Elsevier Reed, regarding certain Elsevier journal articles posted on our publicly accessible university web pages. We have been provided with examples of these articles and reviewed the situation. Elsevier has put the University of Calgary on notice that these publicly posted Elsevier journal articles are an infringement of Elsevier Reed’s copyright and must be taken down."

If Elsevier sends a take-down notice to a university, you have two simple options:

(1) Leave it up, and send the notice back to Elsevier with a copy of Elsevier’s policy on self-archiving.

or

(2) Re-set access as Closed Access and rely on the repository’s copy-request Button.

(If the take-down notice was because you deposited the publisher’s PDF, make the publisher’s PDF Closed Access and deposit the author’s final draft instead, and make that OA.)

And fix your mandate to make sure it specifies that the author’s final draft should be deposited immediately upon acceptance for publication, not the publisher’s PDF.

(Calgary would have done better to respond pragmatically to this latest round of Elsevier FUD and bluff -- but, after all, this is exactly what FUD's for, isn't it?)

I think there has been a vast overstatement and overselling of the alleged need for -- and urgency of -- re-use rights (CC-BY) (or NC) for peer reviewed research journal articles today, especially in view of the fact that CC-BY (or NC) is much harder to get journal publishers to agree to, today, and not all (perhaps not even most) authors and disciplines need or want it, today.

Consider that if a subscription publisher were to allow CC-BY, that would authorize any 3rd-party rival publisher to free-ride with impunity on the publisher's investment, selling the publisher's contents at a cut-rate from the very day of publication. So asking subscription publishers for unembargoed Green Libre OA (CC-BY, or CC-BY NC, etc.) rather than just unembargoed Green Gratis OA is tantamount to asking them to commit immediate suicide, hence likely to provoke them instead to adopt as long a protective embargo as possible against Green Libre OA.

Re-use rights (Libre OA) -- just like Gold OA -- will come, after Green Gratis OA, where needed and wanted. But neither is even remotely as important or urgent as (Gratis) OA itself today: free online access to the journal articles of which 80% are accessible only to subscribers today.

Gratis OA means free online access, reading, linking, downloading, printing, storing, and data-mining locally, as well as harvesting, inverting and indexing of navigation and research by Google Scholar and countless other search engines).

Green Gratis OA is the solution to providing the missing 80% of OA. All that's needed is to mandate it.

But insisting now on Libre OA (further re-use rights), just like insisting now on Gold OA, is simply demanding still more, and thereby raising higher the obstacles to getting the 80% Green OA (Gratis) that is already within reach and has been for years through Green (Gratis) OA self-archiving mandates by researchers' institutions and funders (as so brilliantly described and spear-headed by Professor Bernard Rentier in his recent GOAL posting).

And all in the name of further benefits that are not even remotely as important and urgent as Green Gratis OA.

Consider that there is a practical contradiction between trying to expand Green OA mandates from funders and institutions to 100% and insisting on Libre OA (e.g., CC-BY, etc.) today.  

For not one of the world's Green OA mandates, whether funder of institutional, is a Libre OA mandate -- and with good reason: Green OA mandates are a research-community adaptation to the publisher status quo: 

Publication is still largely subscription-based today, and copyright is mostly transferred to publishers (rather than being non-exclusively licensed, as we of course want it to be, eventually). That's the status quo. 

And self-archiving of the author's refereed final draft is the research community's own self-help response, within this publisher status quo.

The result is Green Gratis OA; that is the thing that the research community needs the most today. That is what maximizes research access, uptake, usage, applications and impact by making it accessible to all users, not just those whose institutions can afford subscription access. But Green Gratis OA is only at about 20% worldwide today, because so few institutions and funders have as yet mandated it.

Opening up the Libre OA front, alongside the Gold OA front, instead of pushing full-speed on the all-important Green Gratis OA-mandating front toward 100% Green Gratis OA is simply adding further obstacles, handicaps and distractions to the Green Gratis OA front -- as well as providing an unscalable model that most other countries will not want (or be able) to follow today.

And the most important thing to keep in mind is that these further obstacles, handicaps and distractions are nowhere near as important and urgent as (Green, Gratis) OA itself. (Not to mention that the fastest and surest way to get eventual Libre OA as well as Gold OA is to first mandate Green Gratis OA universally.)

I think it would be practical, realistic and helpful to make it clear to all OA advocates that the primary, immediate, and already fully reachable target is 100% Green Gratis OA, and that the re-use rights and the Gold OA can and will come later, after this urgent primary goal is reached, but will only make it gratuitously harder to reach if they are needlessly insisted upon in advance.

A word to the wise.

I close by re-quoting the spot-on and timely words of Professor Rentier in his recent GOAL posting [emphasis added]:

"...I have mandated deposit in my University's repository (ORBi) and since there is no way I can force my colleagues to "obey", I have just made official a procedure whereby the only publication list being considered in a Liege University member's C.V. is the one produced by ORBi. Simple. This explains ORBi's success... Of course, this does not solve the question of immediate open access. Only those papers published by publishers who agree upon immediate access on line are immediately accessible on line. The others must be immediately deposited but cannot be seen fully upon publication. They must await the end of the publishing house's embargo period, 6 months for most of them. Meanwhile, the title and metadata appear on any search engine by keywords, authors' names, University, etc. and a single click sends [an immediate eprint] request to the author. There are a few minutes to a few hours before the final author version is sent: it depends on the author's availability and response time. Usually less that 24 hours unless the author is on a weeklong trek in Nepal.... Compliance... has been very high, at first because of the soft but firm coercive top down pressure, but nowadays because our authors have fully realised the very much larger readership with which OA provides them and the citation advantage from which they benefit. My most reluctant colleagues have now become ORBi's best advocates. I consider this a success. OA's worst enemy out there is OA [fundamentalism]…"

Integrating Institutional and Funder Open Access Mandates: Belgian Model

The Liège ORBi model: Mandatory policy without rights retention but linked to assessment procedures

EOS: New worldwide organization for universities promoting open access

Repositories: Institutional, Thematic, or Central?

Liege Mandate Definitely Immediate-Deposit/Optional-Access

Stevan Harnad

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Comments invited -- but please don't post them here but in the Higher EDucation Development Association (HEDDA) blog.

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In the Hedda Blog, Chris Maloney (Contractor for PubMed Central) asked:

"Can/do journal publishers put stipulations on authors, as a condition of publication, that their self-archiving have an embargo period (i.e. not be available for a period such as six months)?"

Yes they can and do. See SHERPA Romeo.

But over 60% of them (including most of the top journal publishers) do not, and instead endorse immediate "green" OA self-archiving of authors' refereed final drafts, in the author's institutional repository (IR) immediately upon acceptance for publication.

For the minority of journals that still do embargo OA, there is nevertheless a work-around: The Immediate-Deposit/Optional-Access (ID/OA) mandate still requires immediate deposit, but allows the author to set access to the deposit as Closed Access instead of OA during the embargo. Would-be users web-wide can still access the bibliographic metadata, and can then use the IR's automated "email eprint request" Button to request a copy.

(This is not OA but "Almost-OA" and can tide over researcher needs while hastening the natural, inevitable and well-deserved demise of the remaining publisher embargoes.)

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.)

ABSTRACT: We describe the "Fair Dealing Button," a feature designed for authors who have deposited their papers in an Open Access Institutional Repository but have deposited them as "Closed Access" (meaning only the metadata are visible and retrievable, not the full eprint) rather than Open Access. The Button allows individual users to request and authors to provide a single eprint via semi-automated email. The purpose of the Button is to tide over research usage needs during any publisher embargo on Open Access and, more importantly, to make it possible for institutions to adopt the "Immediate-Deposit/Optional-Access" Mandate, without exceptions or opt-outs, instead of a mandate that allows delayed deposit or deposit waivers, depending on publisher permissions or embargoes (or no mandate at all). This is only "Almost-Open Access," but in facilitating exception-free immediate-deposit mandates it will accelerate the advent of universal Open Access.

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Comments invited -- but please don't post them here but in the Higher EDucation Development Association (HEDDA) blog.

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SUMMARY: To give authors the exceedingly bad advice that what they should do first, if they wish to provide Open Access to their articles, is to attempt to modify their copyright agreements (along the lines of the SPARC author addendum) one-by-one is not only to give advice that is doomed to fail in many instances (and not even to be tried in most), but it is to divert attention and efforts from the real solution. What OA advocates worldwide should be using all their energy to bring about is the adoption of immediate-deposit mandates by their institutions (and funders). That done, it no longer matters that one-by-one copyright modification efforts are a drop in the bucket, because the deposit mandate will be doing the real work, providing Open Access (to the majority of an institution's annual articles, and Almost-Open-Access to the rest) and setting the right example for other institutions. Once immediate deposit mandates scale up globally, publisher copyright contracts will adapt to the new reality as a matter of natural course. (For tried-and-tested policy guidance, please turn to EnablingOpenScholarship.)

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On Fri, Jan 14, 2011, Andrew Stancliffe wrote on liblicense:

"The UCLA Library is working with a faculty member here who has submitted an article to the journal Sleep. We advised the author to modify the author's agreement, using the SPARC author's addendum, to retain copyright. The author received a reply from Sleep, which rejected the change, stating "I have never heard of any journal doing this.  Sleep would not publish any paper it does not hold copyright to."

"We're curious to know if anyone on the list has negotiated with Sleep in the past and what their experiences have been.  Thanks for any input you can give us."

This is the royal road to decades and decades more of lost research access, progress and impact. 

It is the equivalent of trying to combat smoking by trying to persuade smokers to write individually to tobacco companies to ask them to manufacture fewer cigarettes.

(1) The goal is to provide Open Access, not to modify author copyright agreements.

(2) The SPARC author addendum is much too strong in any case: gratuitously and self-defeatingly strong:

(3) No publisher permission is required by authors to deposit the full-text of their refereed, revised, accepted final drafts in their own institutional repositories, immediately upon acceptance for publication.

(4) The bibliographic metadata (author, date, title, journal, etc.) are in any case immediately accessible to all would-be users.

(5) The majority of journals (including just about all the top journals) have already formally endorsed setting access to the full text of the deposit as Open Access immediately upon deposit.

(6) If, for the remaining minority of journals, the author wishes to observe a publisher embargo on Open Access, access to the deposit full-text can be set to "Closed Access" rather than "Open Access" during the embargo, and the author can email eprints to would-be users on request.

(7) This provides immediate Open Access to the majority of deposits plus "Almost Open Access" to the remaining minority, thereby providing for all immediate research usage needs and ensuring -- once it is being done universally -- that embargoes will die their natural, well-deserved deaths soon thereafter, under the growing pressure from the universal deposits, the palpable benefits of the majority Open Access and the contrasting anomaly of the minority of embargoed access and the needless inconvenience and delay of individual email eprint requests.

(8) But the best author strategy of all is to make all deposits immediately Open Access today, and to decide whether or not to Close Access to any one of them only if and when they ever receive a take-down notice from the publisher. 

Authors will not receive publisher take-down notices because publishers (unlike authors, and librarians) already know very well today that trying to do that would soon lose them their authorships, who would migrate to the majority of journals that endorse immediate Open Access deposit. This has already proved true for the two decades'-worth of successful and unchallenged "don't-ask" deposits that we already have behind us -- at least two million of them, by computer scientists on their institutional websites and by physicists in Arxiv. With universal deposit (and especially with universal institutional and funder mandates to deposit) the incentive for publishers to request take-down is even lower.

So, to repeat: giving authors the exceedingly bad advice that what they should do first, if they wish to provide Open Access to their articles, is to attempt to modify their copyright agreements (along the lines of the SPARC author addendum) one-by-one is not only advice that is doomed to fail in many instances (and not even to be tried in most), but it is diverting attention and efforts from the real solution.

Making the attempt to modify the author's copyright agreement can be quasi-mandated (as it is by Harvard, MIT and a few other institutions following their example), by reserving copyright in a blanket default institutional contract predating and hence mooting all subsequent contracts with publishers, but only at the cost of allowing the author the option to opt out of the prior blanket institutional copyright reservation contract in the face of -- or in anticipation of -- non-acceptance by the publisher.

It is for this reason that Harvard has (sensibly) adopted a simultaneous immediate-deposit mandate -- with no opt-out option -- alongside its copyright reservation policy. But a little reflection on this will make it apparent that the real work is being done by the immediate-deposit mandate, and the attempt to modify the copyright agreement with the author continues to be just a hit-or-miss affair, even if beefed up by the option of institutional contractual backing.

University of California has only the blanket institutional copyright reservation policy, with the opt-out option, and no accompanying deposit mandate without opt-out; nor does UCLA have a deposit mandate of its own. 

Hence these one-by-one attempts, like UCLA's, to modify copyright are not only a hit-or-miss affair, but a colossal and quixotic strategic error, and a doomed and disheartening waste of precious time (and research uptake and impact). 

What OA advocates worldwide should be using all their energy to bring about is the adoption of an immediate-deposit mandate. That done, it no longer matters that one-by-one copyright modification efforts are a drop in the bucket, because the deposit mandate will be doing the real work, providing Open Access (to the majority of an institution's annual articles, and Almost-Open-Access to the rest) and setting the right example for other institutions. Once immediate deposit mandates scale up globally, publisher copyright contracts will adapt to the new reality as a matter of natural course.

But if we instead keep pinning our hopes and efforts on one-by-one, hit-and-miss attempts by authors to modify copyright contracts, the ride is destined to be a long and possibly endless one. 

It is almost as amazing as it is appalling how long the academic community keeps heading off in all directions except the right one when it comes to Open Access: publishing reform ("gold OA"), copyright reform, peer review reform -- every road but the very one that the online era has opened up for us, the road that made Open Access itself conceivable, possible, and immediately reachable: universal author self-archiving and self-archiving mandates by their institutions and funders.

No; encouraging 1000 flowers to bloom has not helped: Instead, it has distracted and diverted us from the swift and certain solution; let's hope it does not keep it up for another 1000 days, months, or years...

For tried-and-tested policy guidance, please turn to EnablingOpenScholarship. The wait has been long enough already. 

Stevan Harnad
American Scientist Open Access Forum

Frankel & Nestor's helpful advice to authors about rights retention is very well-informed and valuable, except for this:

"Finally, we must be careful to distinguish between a license mandate and a deposit mandate. Whereas a licensewhether exclusive or nonexclusivetransfers some amount of rights in the article, a deposit mandate merely allows for (or requires) a physical copy of the article to be given to the institution. Simply handing over a physical copy of an article, or draft of that article, is not sufficient under copyright law to constitute a grant of any rights, as physical possession of an article does not give the owner of that copy any copyright rights in work embodied in the copy.

"Deposit mandates certainly are useful for institutions to retain the knowledge and scholarship of its faculty members. Indeed, some journals already permit institutional depositories. But such permissions do not address the increasing loss of knowledge in the academic community caused by the ever- increasing costs of journal subscriptions and the inability for academic institutions to keep up with shouldering the burden of those costs. The open access policy goes beyond a simple university depositorylimited in size, scope, and, most universal scope and accessibility. By combining the nonexclusive license discussed in this paper with a deposit policy, an institution can create open access."

Simon J. Frankel and Shannon M. Nestor (2010) Opening the Door: How Faculty Authors Can Implement an Open Access Policy at Their Institutions.

(1) Most authors are not providing Open Access (OA) to their refereed research output at all today. (Only 20% are providing it.)

(2) OA Mandates are coming, but still extremely slowly.

(3) It is much harder to mandate more than less.

(4) A license mandate is much more than a deposit mandate.

(5) The majority of journals (60%+) already endorse immediate Open Access self-archiving of the author's refereed final draft.

(6) A deposit mandate will immediately provide OA to 60%+ instead of just 20% of refereed research.

(7) The repository's eprint-request button can provide almost-OA to all the rest for the time being.

(8) So what is urgently needed is at least a deposit mandate, today.

(9) Re-use rights are not urgent, and will be much easier to get once we already have universally mandated OA.

The Gratis Green OA self-archiving door is open already: All institutions and funders need do is mandate entry. Rights retention and Libre OA can come later.

Harnad, S. (2008) Waking OA’s “Slumbering Giant”: The University's Mandate To Mandate Open Access. New Review of Information Networking 14(1): 51 - 68

Harnad, S. (2008) Which Green OA Mandate Is Optimal? Open Access Archivangelism December 7 2008.

Harnad, S. (2010) The Immediate Practical Implication of the Houghton Report: Provide Green Open Access Now. Prometheus 28 (1). pp. 55-59.

Sale, A., Couture, M., Rodrigues, E., Carr, L. and Harnad, S. (2010) Open Access Mandates and the "Fair Dealing" Button. In: Dynamic Fair Dealing: Creating Canadian Culture Online (Rosemary J. Coombe & Darren Wershler, Eds.)

Suber, Peter (2008) Green/gold OA and gratis/libre OA. Open Access News August 2, 2008

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SUMMARY: Professor Shavell's paper on copyright abolition conflates (i) books with journal articles, (ii) Gold OA with Green OA, and (iii) the problem of Open Access with the problem of copyright reform. Although copyright reservation by authors and copyright reform are always welcome, they are unnecessary for universal Green OA; and needlessly suggesting that copyright reservation/reform is or ought to be made a prerequisite for OA simply slows down progress toward reaching the universal Green OA that is already fully within the global research community's grasp.

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Critique of:

Shavell, Steven (2009) Should Copyright Of Academic Works Be Abolished?

[S. Shavell's Summary] "The conventional rationale for copyright of written works, that copyright is needed to foster their creation, is seemingly of limited applicability to the academic domain. For in a world without copyright of academic writing, academics would still benefit from publishing in the major way that they do now, namely, from gaining scholarly esteem. Yet publishers would presumably have to impose fees on authors, because publishers would not be able to profit from reader charges. If these publication fees would be borne by academics, their incentives to publish would be reduced. But if the publication fees would usually be paid by universities or grantors, the motive of academics to publish would be unlikely to decrease (and could actually increase) -- suggesting that ending academic copyright would be socially desirable in view of the broad benefits of a copyright-free world. If so, the demise of academic copyright should be achieved by a change in law, for the "open access" movement that effectively seeks this objective without modification of the law faces fundamental difficulties."

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[Note: Professor Shavell's posting as well as the critique below are unrefereed, unpublished drafts ("preprints"). They have both been posted publicly, but they do not constitute formal "publications" in the academic sense, let alone peer-reviewed publications. In particular, Professor Shavell's working draft was posted in order to solicit comments, on the basis of which it is likely to be revised before being submitted for publication. These unpublished postings can, however, be referred to and cited, as long as the user is careful to make it clear that they are prepublication working drafts rather than lapidary refereed postprints that have been accepted for publication by a journal. This is all part of evolving scholarly practice in the online era.]

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Professor Shavell's paper contains useful analysis and advice about scholarly/scientific book publication, economics and copyright in the digital era, but on the subject of refereed journal articles and open access it contains too many profound misunderstandings to be useful.

(1) What are "academic works"? Shavell largely conflates the problem of book access/economics/copyright and journal-article access/economics/copyright, as well as their respective solutions.

The book and article problems are far from the same, and hence neither are their solutions. (And even among books, the boundary between trade books and "academic" books is fuzzy; nor is an esoteric scholarly monograph the same sort of thing as a textbook, a handbook, or a popularization for the general public by a scholar, although they are all "academic.")

Books are single items, bought one-time by individuals and institutions -- journal articles are parts of serials, bought as annual subscriptions, mostly by institutions.

Books are still largely preferred by users in analog form, not digital-only -- journal articles are increasingly sought and used in digital form, for onscreen use or local storage and print-off. (OA only concerns online access.)

Print-on paper books still cost a lot of money to produce -- digital journal article-texts are generated by their authors. In the online age, journals need only provide peer review and certification (by the journal's title and track-record): no print edition, production or distribution are necessary.

It is not clear that for most or even many authors of "academic works" (whatever that means) the sole "benefit" sought is scholarly uptake and impact ("scholarly esteem"), rather than also the hope of some royalty revenue -- whereas it is certain that all journal article authors, without a single exception, do indeed seek solely scholarly uptake and impact and nothing else.

(2) What is Open Access? Shavell largely conflates fee-based Gold OA (journal publishing) and Green OA (journal-article self-archiving), focusing only on the former, and stressing the deterrent effect of having to pay publishing fees.

(3) Why Pay Pre-Emptive Gold OA Fees? Gold OA publishing fees are certainly a deterrent today. But no publishing fees need be paid for Green OA while institutional subscriptions are still paying the costs of journal publishing.

If and when universal Green OA -- generated by universal Green OA self-archiving mandates from institutions (and funders) worldwide -- should eventually cause institutions to cancel their journal subscriptions, rendering subscriptions no longer a sustainable way of recovering the costs of journal publishing, journals will cut costs, phase out inessential products and services that are currently co-bundled into subscriptions, and downsize to just providing and certifying peer review, its much lower costs paid for on the fee-based Gold OA cost-recovery model out of the institutional windfall subscription cancellation savings.

Shavell instead seems to think that OA would somehow need to be paid for right now, by institutions and funders, out of (unspecified) Gold OA funds, even though subscriptions are still paying for publication today, and even though the pressing need is for OA itself, not for the money to pay for fee-based Gold OA publishing.

Universal OA can be provided by mandating Green OA today. There is no need whatsoever for any extra funds to pay for Gold OA.

(4) Why/How is OA a Copyright Issue at all? Shavell largely conflates the issue of copyright reform with the issue of Open Access, suggesting that the way to provide OA is to abolish copyright.

This is not only incorrect and unnecessary, but redirecting the concerted global efforts that are needed to universalize Green OA Mandates toward copyright reform or abolition will again just delay and deter progress towards universal Green OA.

Green OA can be (and is being) mandated without any need to abolish copyright (nor to find extra money to pay Gold OA fees).

Shavell seems to be unaware that over 90% of journals already endorse Green OA self-archiving in some form, 63% endorsing Green OA self-archiving of the refereed final draft immediately upon acceptance for publication. That means at least 63% Immediate Green OA is already potentially available, if mandated (in contrast to the 15% [not 5%] actual Green OA that is being provided spontaneously, i.e., unmandated, today).

And for the remaining 37% of journal articles, the Green OA mandates can require them to be likewise deposited immediately, as "Closed Access" instead of Open Access during any publisher access embargo, with the Institutional Repository's "email eprint request" Button tiding over research usage needs by providing "Almost OA" during any embargo.

This universally mandated 63% OA + 37% Almost-OA will not only provide almost all the research usage and impact that 100% OA will, but it will also hasten the well-deserved death of publisher access embargoes, under the mounting pressure for 100% OA, once the worldwide research community has at last had a taste of 63% OA + 37% Almost-OA (compared to the unmandated c. 15% OA -- not 4.6% as in Shavell's citation -- that we all have now).

In conclusion: Professor Shavell's paper on copyright abolition conflates (i) books with journal articles, (ii) Gold OA with Green OA, and (iii) the problem of Open Access with the problem of copyright reform. Although copyright reservation by authors and copyright reform are all always welcome, they are unnecessary for universal Green OA; and needlessly suggesting that copyright reservation/reform is or ought to be made a prerequisite for OA simply slows down progress toward reaching the universal Green OA that is already fully within the global research community's grasp.

Stevan Harnad
American Scientist Open Access Forum