Copyright

SH: "[T]here is nothing either defensible or enforceable that a publisher can do or say to prevent a researcher from personally distributing individual copies of his own (published) research findings to individual researchers, for research purposes, in any form he wishes, analog or digital, at any time. That is what researchers have been doing for many decades, whether or not their right to do so was formally enshrined in a publisher's 'author-re-use' document."

RQJ: "This discussion strikes at the heart of green OA implementation. Among other things, it's why we have mandates."

Actually that's not correct. What I was referring to above -- authors mailing an individual analog reprint or emailing an individual digital eprint to an individual requester for research purposes -- predates both OA (Green and Gold) and (Green) OA mandates.

The only connection with Green OA mandates is that email eprint requests for Closed Access deposits whose metadata are openly accessible allow users to request -- and authors to provide -- individual one-on-one "Almost OA" during any OA embargo period: That way Green OA mandates can require deposit of the final refereed draft immediately upon acceptance, with no exceptions or opt-outs, no matter how foolish a copyright transfer agreement the author may have signed.

If a Green OA mandate does not require immediate deposit, then it is completely at the mercy of publisher OA embargoes: The author deposits only if and when the publisher stipulates that he may deposit, because all deposits are OA. If, instead, immediate deposits are required in every case, without exception, but where OA is publisher-embargoed the deposit may instead be made Closed Access during the embargo, rather than OA, then the email eprint request button allows the author to provide "Almost OA" on an individual case by case basis for the Closed Access articles during the embargo.

But if the mandate instead requires deposit only after the publisher embargo has elapsed, that means the only access during the embargo period is subscriber-access. That means a great loss of potential research usage and impact.

RQJ: "I believe Harnad is likely incorrect as a matter of law (at least in the US), but ultimately this may end up as a court case that gives us more explicit guidance.

If researchers sending individual reprints and eprints to individual requesters for research purposes has not gone to court for over a half century, it is difficult to imagine why someone would think it will go to court now: Publishers suddenly begin suing their authors for fulfilling reprint requests?

RQJ: "Note that "research findings" (which are the stuff of patent or academic integrity if protected at all) are very different from their expression in text, which is what is transferred through the copyright agreement."

We are not talking about research findings, we are talking about copies of verbatim (published) reports of research findings: sending them to individual requesters, as scholars and scientists have been doing for over half a century (since at least the launch of Eugene Garfield's "Current Contents" and "Request-a-print" cards):

Swales, J. (1988), Language and scientific communication. The case of the reprint request. Scientometrics 13: 93–101. "This paper reports on a study of Reprint Requests (RRs). It is estimated that tens of millions of RRs are mailed each year, most being triggered by Current Contents..."

RQJ: "Note also that "what researchers have been doing for many decades" is disputable -- arguably what researchers did anteXerox was distribute the 100 or so offprints of their article that they got as part of their Faustian bargains."

They could also mail out copies of their revised, accepted final drafts.

And whether or not any of that was "disputable" before xerox, it certainly wasn't ever contested -- neither with the onset of the xerox era, nor with the onset of the email era.

RQJ: "Note also that courts would be under strong conflicting pressures if a case like this ever actually got heard. On the one hand, Harnad's point is good that courts would want to identify ways to find for those sympathetic scholarly authors. On another, anyone who has been following the RIAA (or remembers Eldred) knows that some of the courts also have tried to find in favor of the owners of the copyrighted works and in favor of sanctity of contract."

Notice that in all other cases but this very special one (refereed research journal articles) both author and publisher were allied on the same side of the copyright/access divide: both wanted to protect access to their (joint) product (and revenues) from piracy by third parties.

In stark contrast, in this one anomalous case -- author give-away research, written purely for maximal uptake, usage and impact, not at all for royalty revenue -- the publisher and the author are on opposite sides of the copyright/access divide, and publishers would not be suing pirates, but the authors of their own works (and not "works for hire!").

I would say that the differences from all prior cases are radical enough here to safely conclude that all prior bets are off, insofar as citing precedents and analogies are concerned.

And I would say that the de facto uncontested practices of millions of scholars and scientists annually for decades since well into both the photocopy and the email eras bear this out.

And although individual reprint/eprint request-fulfillment by authors is definitely not OA (though it is a harbinger of it), the growing clamor for OA today is surely making it all the harder for publishers now suddenly to do an abrupt about-face, endeavoring to contest individual reprint/eprint request-fulfillment by authors after all this time -- and now, of all times!

RQJ: "On a third hand, the institutional employers of the researchers might well try to assert WmfH or other compulsory license theories that trumped the publisher's copyright."

You are thinking here about what institutions (and funders) could do to force the issue insofar as OA is concerned (and I agree, they do have an exceedingly strong hand, and could and should use it if it proves necessary).

But that is not even what we are talking about here: We are just talking about the longstanding pre-OA practice of individual reprint/eprint request-fulfillment by authors, for research purposes...

RQJ: "On a fourth, there's the public interest in "the Progress of Science" and a dearth of good empirical data as to which copyright regimes actually do promote that progress."

All worthy and worthwhile, but probably not necessary, as neither individual reprint/eprint request-fulfillment by authors nor Immediate-Deposit/Optional-Access (ID/OA) mandates are copyright matters:

RQJ: "...Will it ever go to court? Maybe not. The publishers might win their particular case but lose the war by triggering a revolution."

What is the "it" that you are wondering about? Over 90% of journals are already Green on immediate, unembargoed OA self-archiving in some form (63% for the refereed postprint, a further 32% for the unrefereed preprint).

So are you wondering whether the non-Green journals will try to sue their authors? No, they won't. At most, some may try to send them take-down notices, which their authors will either choose to honor or ignore.

But that isn't even what we are talking about here: We are talking about individual reprint/eprint request-fulfillment by authors, for research purposes: Wouldn't the time for authors to worry about that have been 50 years ago, before they began doing it, rather than now, when they and their children and grand-children have already been doing it with impunity for generations?

Stevan Harnad
American Scientist Open Access Forum

See also:
Definitive Answer: II
and
The Definitive Answer: Deposit All Final Drafts, Immediately Upon Acceptance for Publication

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Colin Smith [CS], Repository Manager, Open University, wrote, in JISC-Repositories:

CS: "[D]espite what is written on [Wiley/Blackwell's] website, I remain concerned by some other information I received, and by the wording on their copyright form, which appears to contradict the information on their website."

Colin, please let me preface my reply with a reaffirmation of the fact that I think your efforts on behalf of OA and filling OU's IRs with OA's target content are extremely valuable, timely and welcome, both for OU and for OA. 

If I venture to offer some practical advice, it is in no way intended to imply that your work is less than precious. I am merely suggesting ways in which it can be made ever more effective. And one of those ways is to reassure authors by putting their (largely naive and groundless) worries about copyright at ease, rather than reinforcing them.

The default explanation and advice to OU's authors regarding their right to deposit their refereed, accepted final drafts in OU's repository should (in my judgment) be the following:

(1) Every final draft can and should be deposited in OU's IR immediately upon acceptance for publication. There is absolutely no legal obstacle to doing this, without exception; publisher policy and copyright are completely irrelevant to making this deposit.

(2) Set access to the deposit immediately as Open Access if the journal (or the publisher, on behalf of all its journals) has formally stated that all of its authors may make their final drafts OA, without any access embargo (as at least 63% of journals have already done). If you have contractually agreed to an access embargo in your copyright agreement, you can instead set access to the deposit as Closed Access for the duration of the embargo. (Closed Access means only the metadata are openly accessible, not the full-text, until the embargo elapses.)

(3) If the journal or publisher has formally posted that you may make your final draft OA immediately and has elsewhere made negative statements inconsistent with that, act according to the positive statement until and unless you should ever receive a "take-down notice" from the publisher -- at which time you may simply re-set your OA deposit as Closed Access if you wish.

(4) Avoid agreeing contractually to any OA embargo wherever possible.

That, I think, is the only advice an institution and its repository should be giving its authors, to inform and reassure them about (1) their right to deposit and (2) their right to set access to their deposit as OA.

But none of this advice will have much effect one way or the other until and unless OU adopts an OA mandate:

[T]he principal purpose of mandates themselves is to reinforce researchers' already-existing inclination to maximise access and usage for their give-away articles, not to force researchers to do something they don't already want to do.

(Researchers need to be reassured that their departments or institutions or funders are indeed fully behind self-archiving, and indeed expect it of them; otherwise researchers remain in a state of Zeno's Paralysis" about self-archiving year upon year, because of countless groundless worries, such as copyright, journal choice, and even how much time self-archiving takes.)" (Harnad 2009)

CS: "By posting on this issue, I am simply sharing information with the repository community to help us make informed decisions on behalf of our depositors. One of the biggest selling points when advocating open access self-archiving is to reassure our academics that we know what we are doing when it comes to checking publishers’ copyright and self-archiving policies. Depositors are placing their faith in our knowledge and expertise, and therefore I certainly do not think it is a mistake to be thorough."

The best institutional reassurance to its authors is an official institutional deposit mandate. The correct and complete advice (in my view) is (1) - (4) above. More (e.g., fretting about contradictory formal statements by publishers) would be just reinforcing author worries rather than reducing them.

Nor do authors need to resort to "faith." In cases where they have any "reasonable doubts" they should simply set access provisionally as "Closed Access," rather than not depositing at all -- or depositing only after any embargo has elapsed.

CS: "For green OA to be successful, it must be sustainable. For it to be sustainable, it needs to offer a good service."

For green OA to be sustainable, it has to be mandated. Otherwise there is nothing to sustain. Repository managers and library staff trying to beg, borrow or appeal deposits through reassurances about legality will never come anywhere near filling an IR with its target OA content. What is needed is an official institutional deposit mandate.

CS: "If academics think (rightly or wrongly) that we are placing them at risk by making decisions based on cherry-picked statements that suit us, I think most would not see this as providing a good service. Therefore, is it not a strategic mistake to not consider carefully any publisher mixed messages?"

I think that there might be an underlying premise here to the effect that: the way to fill an IR is to provide unmandated authors with a proxy deposit service together with reassuring legal advice. 

My own view, for what it's worth, is that this premise is profoundly erroneous: that (1) - (4) is all that repository managers and librarians need to do for authors (though if for some reason they really wish to, they can do their keystrokes for them too).

Any further effort and energy (apart from the technical maintenance of the IR, including the all-important incentive: IRstats) will be most fruitful if directed toward persuading the university (as well as its individual faculties, schools, departments and labs) of the necessity, feasibility and benefits of adopting a Green OA deposit mandate, rather than fussing about publishers' self-contradictory policy statements. We have to keep reminding ourselves that self-archiving is entirely in the hands of the research community, not the publishing community -- but those hands (or rather their fingertips) need to be mandated into movement:

It is useful for the research community to keep reminding itself that the only thing that stands between them and universal OA is keystrokes.

Stevan Harnad
American Scientist Open Access Forum

---

SUMMARY: (1) Under all circumstances, deposit the final, refereed, accepted draft of your journal article (postprint) in your Institutional Repository (IR), immediately upon acceptance for publication. There is no need whatsoever to make a single exception.
    (2) Unless you are certain that you have reason not to, set access to that deposited draft as Open Access (OA) immediately upon deposit. (Otherwise, you can set access as Closed Access, for the duration of any publisher embargo you wish to honor.)
    (3) The only thing even remotely at issue is whether or not, if you deposit a document in your IR and make it OA, you receive a take-down notice from the publisher.
    (4) If you receive a take-down notice and you wish to honor it, set access as Closed Access for the duration of any publisher embargo you wish to honor.
    (5) Meanwhile, if there are multiple, self-contradictory statements of the publisher's policy, act on the most positive one and don't give it another thought until and unless you ever receive a take-down notice.

---

On 21-May-09, at 6:58 AM, in the American Scientist Open Access Forum, C.J.Smith posted "The definitive answer from Wiley-Blackwell":

In the Wiley-Blackwell copyright assignment form, which most authors publishing in this company’s journals will sign, it states (under item ‘C.2. Permitted Uses by Contributor > Accepted Version’) that:

“Re-use of the accepted and peer-reviewed (but not final) version of the Contribution shall be by separate agreement with Wiley-Blackwell”

I took this to mean that authors can, if they want to, approach Wiley-Blackwell on an article-by-article basis for permission to deposit their final draft manuscripts in their institutional repository.

However, having chased up permission with Wiley-Blackwell on behalf of an author here at the Open University, I received (after a number of email exchanges) the following (apparently definitive) answer from their Associate Permissions Manager:

“The submission version is the only version we allow to be placed into institutional repositories. We do not allow the post-peer review article, the author’s final draft, or any other version to be deposited. Therefore, I can confirm that permission is hereby refused in this case.”

So, unfortunately, given the size of Wiley-Blackwell (fourth largest academic journals publisher?), it seems we have a disappointing barrier to Green OA. Of course, Wiley has always not permitted final draft self-archiving, but it now appears that in merging with Blackwell they have stuck with this policy rather than embracing Blackwell’s.

Although Wiley-Blackwell do offer compliance with the ‘major’ funder mandates (e.g. NIH), it leaves me wondering how they intend to serve their authors who are mandated (for example) by one of the UK Research Councils. Have they thought this through? Are they prepared to lose authors who (in theory at least) could not possibly publish with them because they are not permitted to self-archive?

Colin Smith
Research Repository Manager
Open Research Online (ORO)
Open University Library
Web: http://oro.open.ac.uk
Blog: http://www.open.ac.uk/blogs/oro
Twitter: http://www.twitter.com/smithcolin

---

I don't think anything like a definitive answer has been reached through this proxy permission-seeking, insofar as Wiley's Green-status is concerned: All we have is coyness and self-contradiction from Wiley, about whether or not it endorses immediate author Open Access Self-Archiving of the final, refereed draft (postprint).

First, there appear to be three Wileys:

John Wiley & Sons (GREEN)
Wiley-VCH Verlag Berlin (GREEN)
Wiley-Blackwell (GRAY)

Second, the three Wileys have inconsistent self-archiving policy statements -- inconsistent among the three of them, and inconsistent within each.

Wiley-Blackwell says this :

Wiley-Blackwell journal authors can use their accepted article in a number of ways, including in publications of their own work and course packs in their institution. An electronic copy of the article (with a link to the online version) can be posted on their own website, employer's website/repository and on free public servers in the subject area. For full details see authorservices.wiley.com/bauthor/faqs_copyright.asp .

Wiley-VCH says this (sample from one of its journals):

and John Wiley & Sons says this (sample from one of its journals):

Now let me give some sensible practical advice to authors and Repository Managers alike:

(1) Under all circumstances, deposit the final, refereed, accepted draft of your journal article (postprint) in your Institutional Repository (IR), immediately upon acceptance for publication. There is no need whatsoever to make a single exception.

(2) Unless you are certain that you have reason not to, set access to that deposited draft as Open Access (OA) immediately upon deposit. (Otherwise, you can set access as Closed Access, for the duration of any publisher embargo you wish to honor.)

(3) The only thing even remotely at issue is whether or not, if you deposit a document in your IR and make it OA, you ever receive a take-down notice from the publisher.

(4) If and when you ever receive a take-down notice and you wish to honor it, set access as Closed Access for the duration of any publisher embargo you wish to honor.

(5) Meanwhile, if there are multiple, self-contradictory statements of the publisher's policy, act on the most positive one and don't give it another thought until and unless you receive a take-down notice.

And above all, reflect that if the millions of articles that have been made OA (by computer scientists, physicists, economists, and all other disciplines) since the 1980's had waited (or asked) for a clear, unambiguous green light in advance from each publisher, we would have virtually none of those millions of articles accessed, used and built-upon across those decades by the many users worldwide whose institutions could not afford access to the publisher's subscription edition.

A word to the wise...

Stevan Harnad
American Scientist Open Access Forum

An update of Harvard computer scientist Michael Merzinich's "The ACM Does NOT Support Open Access" (discussed here yesterday) reports that ACM has made it clear it is fully Green on OA self-archiving, but that discussions with Harvard are still underway for the extra re-use rights stipulated in the Author's Addendum.

The nuances here are about the differences between "gratis" OA (free online access) and "libre" OA (free online access plus certain further re-use rights).

I will make no secret of what my own view on this is -- and I've been at this for a very, very long time: Free online access ("gratis OA") is all you need in order to make all the rest happen. The rest will come with the territory, eventually; but the territory must come first. Gratis OA can be and is being mandated by universities and funders (but so far there are only 77 mandates, out of a potential worldwide total of 10,000 or more).

Libre OA asks for more, and entails more complications. Hence it is both harder to agree on adopting a Libre OA mandate, and harder to get compliance (rather than opt-out). The right strategy is hence to stick to mandating Gratis OA for now. Gratis OA is urgent; addenda can wait. The "Green" journals that have already formally endorsed providing immediate Gratis OA (63%) are on the side of the angels. It is foolish and counterproductive to demonize them. If one wants to rant at journals, rant at the pale-green ones, that only endorse self-archiving unrefereed preprints, and that embargo Gratis OA to the refereed postprints (34%); or the gray journals, that don't endorse any form of self-archiving at all (3%).

Libre OA will come, as surely as day follows night, once we have reached universal Green Gratis OA. To insist on over-reaching instead for Libre OA now (by insisting on Libre OA author addenda), instead of grasping the Green Gratis OA that is already within our reach (yet still not being grasped by 99.937% of the universities and funders on the planet) is just one of a long litany of gratuitous mistakes we keeping making over and over, needlessly delaying the optimal, inevitable, obvious and long overdue outcome, year upon year.

The "over-reaching" list is long, and includes the sublime and the ridiculous: Libre OA (re-publishing and re-use rights for refereed journal articles, when Green Gratis OA would already have them online free for any user webwide, 24/7), Gold OA publishing, central (rather than institutional) self-archiving, the publisher's PDF (rather than just the author's refereed, revised, accepted final draft), peer-review reform, publishing reform, copyright reform, freeing all "knowledge" (rather than just freeing all of refereed research first), solving "the" digital preservation problem, solving "the" online search problem, etc. etc.

Mark my words. We will no doubt continue this fruitless frenzy of over-reaching in all directions for some time to come (world hunger may be next on the OA agenda) instead of doing the immediately doable (which is the mandating of universal Green Gratis OA by all universities and all funders), but in the end it will become clear that in order to have all the good things worth having among the things that can be nontrivially linked to OA, all we ever had to do was those those simple 99,937 GG mandates (plus the distributed volley of keystrokes they entail).

Suggested Exercise:
Test What Already Comes with the Gratis Green OA Territory:

"Re-use rights for teaching" are as good example as any of how people are simply not thinking through what really comes with the territory with Gratis Green OA:

If you deposit your article, free for all, in Harvard's Institutional Repository (IR), every teacher and every student webwide has 24/7 access to it -- can link to it, read it on-screen, download it, print it off, data-crunch it.

The days of permissions and "course packs" (for refereed journal articles) would be over -- completely over -- if all universities and funders mandated that all their employees' and fundees' refereed journal articles (the authors' final refereed drafts) were deposited in their IRs, thereby making them Gratis Green OA (the kind ACM endorses).

Now try that out as an intuition pump with some of the other things you thought you desperately needed the Author's Addendum for, over and above GG OA...

There will be a few -- a very few. But none of them will be remotely as important and urgent as Gratis Green OA itself. Yet here we are, holding up GG OA because we are holding for and haggling over needless Author's Addenda instead of working to universalize vanilla GG OA.

And even the very few uses that don't come immediately with the GG OA territory will follow soon after, once we have reached or neared universal GG OA.

First things first... Or, Let not the Best stand in the way of the (immeasurably) Better...

Amen.

Now back to the soothing fulminations against ACM for not immediately conceding the re-use rights that the author-addendum mandates are needlessly insisting upon...

Stevan Harnad
American Scientist Open Access Forum

Comment on EU Green Paper:
"Copyright in the Knowledge Economy"
(Send your own comments here -- till Nov 30)

I am commenting only on the bearing of EC policy on one specific body of content: The 2.5 million articles per year published in the world's 25,000 peer-reviewed research journals in all fields of science and scholarship.

The authors of all these articles neither receive nor seek royalty or fees from access-tolls to their users or their users' institutions. These authors only seek that these research findings should be accessed and used as fully and widely and possible, to the benefit of research progress and applications, and hence to the benefit of the society that funds their research and their institutions.

Making this specific body of research accessible free for all on the Web ("Open Access") will maximise its usage and impact. It does not require a major or even minor reform in copyright law. All it requires is that the authors of these 2.5 million annual peer-reviewed research articles make them open access by depositing them in their own institution's/university's Repository. Sixty-three percent of journals already formally endorse depositing the author's final, revised, peer-reviewed draft in their institutional repository immediately upon acceptance for publication, and immediately making that deposited draft accessible free for all.

For that 63% of articles, it should be evident that no copyright reform whatsoever is needed. What is needed is that the authors' institutions and funders mandate (require) that they deposit and make them Open Access immediately upon acceptance by those journals.

The remaining 37% of articles can also be deposited in the author's institutional repository immediately upon acceptance for publication, but unless their publisher endorses making them immediately Open Access, the deposit has to be set initially as Closed Access (accessible only institution-internally, to the author and his employer).

It is here that legislation can help, although it is not certain that even that is necessary: A Europe-wide law requiring that publicly-funded research and research produced by employees of publicly funded universities must be made openly accessible will exert the requisite pressure on the remaining 37% journals so that they too should endorse that the deposited articles are immediately made Open Access rather than Closed Access.

Note that peer-reviewed research is fundamentally unlike books, textbooks, software, music, and videos. It is in its very essence author give-away content, written only to be used, applied and built-upon. Unlike the creators of the other kinds of content, all the authors of the annual 2.5 million peer-reviewed journal articles want them to be free to all would-be users.

Hence, whatever rationale there may be for changing copyright law for all the other kinds of digital content, in the case of the target content of the Open Access movement, no change is necessary other than a formal publisher endorsement of making the author's final draft freely accessible online.

Free online access provides for the following forms of usage: Being able to find online, link, view online, download, store, print-off (for individual use) and data-mine. These uses all come automatically all come automatically with free online access. Open Access content is also harvested by search engines like google.

But there are further uses, over and above these, that some fields of research feel they need, including modification and republication. It is likely that free online access will moot the need for copyright modification to guarantee these further uses, but there is no harm in trying to stipulate them formally in advance, as long as it is not treated as a prerequisite for Open Access, of for Open Access Mandates.

COPYRIGHT REFORM SHOULD NOT BE MADE A PRECONDITION FOR MANDATING OPEN ACCESS

Stevan Harnad

ABSTRACT: Free online access ("Open Access," OA) to all the articles published annually in the world's 25,000 peer-reviewed journals , in all disciplines and all languages, is optimal and inevitable. It has, however, been delayed by misunderstandings about copyright. It has been wrongly thought that universities and research funding councils cannot mandate the immediate deposit of all their research article output in their OA repositories unless they can somehow change authors' copyright transfer contracts first. Unless institutional consensus can be quickly and successfully reached on adopting an OA deposit mandate that requires the author to contractually reserve the right to make the article OA immediately, the adoption of OA mandates should not be weakened by copyright reservation clauses from which authors can opt out (as in the Harvard University mandate) or by allowing deposit itself to be delayed for an embargo period (as in the EU mandate). Deposit should in all cases be mandated to take place immediately upon acceptance for publication. Over 60% of journals already endorse making the deposit immediately Open Access. For the rest, the deposit can be Closed Access for the time being, disclosing only its bibliographic metadata. The repository's semi-automatic "email eprint request" button can then allow users webwide to request, and authors to provide, an email eprint with just a few extra keystrokes for the Closed Access articles. This 60% OA and 40% "almost-OA" will fulfill worldwide research needs for now, faciilitate universal OA mandates, and usher in 100% OA soon thereafter, on the strength of OA itself and its manifest benefits alone. Copyright and publishing reform can then follow. Trying to make those reforms precede instead, as a contractual precondition, is both unnecessary and a great strategic mistake, delaying consensus on mandates or allowing delays or opt-outs, at a great continuing loss in research access, usage and impact.

Copyright Regulation in Europe

Optimizing Harvard's Proposed Open Access Self-Archiving Mandate

Open Access and Open Data

Copyright retention is not a prerequisite for self-archiving

Making Ends Meet in the Creative Commons

Stevan Harnad
American Scientist Open Access Forum

Copyright Regulation in Europe – An Enabling or Disabling Factor for Science Communication

Urheberrechtsregulierung als Ermöglichungs-bzw. als Verhinderungsfaktor für Wissenschaftskommunikation

European Network for Copyright in Support of Education
European Workshop Program
Nov. 14-15, 2008
Location: Heinrich-Böll-Foundation, Schumannstr. 8, Berlin-Mitte, Germany

Thursday – Nov. 13, 2008

21:00 – 22:30 Chimney talk : Jerzy Montag, MP,spokesman for law politics, BÜNDNIS90/DIE GRÜNEN (Green Party) in the German Parliament

Friday - Nov. 14, 2008

9:00 – 9:15 Ralf Fücks, Andreas Poltermann, Heinrich-Böll-Foundation
Welcome addresses, Introduction to the conference
9:15 – 9:30 All participants Introduction

Session 1: Copyright and science – Demands and objectives
Moderation: Rainer Kuhlen

9:30 – 10:15 Rainer Kuhlen, University of Konstanz (Germany)
Copyright and science – Demands and objectives

10:15 – 10:45 Gerhard Fröhlich, University of Linz (Austria)
Free copying or plagiarism?

10:30 – 11:00 Panel discussion:
Rainer Kuhlen, Gerhard Fröhlich, Stuart Taylor, The Royal Society (United Kingdom), Florin Filip, Academy of Romania (Romania), Agnès Ponsati, CSIC Library Network, Spanish National Research Council (Spain)

Session 2: Exceptions and limitations or a copyright blanket clause for science
Moderation: Wolf-Dieter Sepp

11:30 – 12:00 Lucie Guibault, University of Amsterdam (Netherlands)
A framework for an obligatory system of exceptions and limitations

12:00 – 12:30 Séverine Dusollier, University of Namur (Belgium)
A systematic approach to exceptions in the European Union

12:30 – 13:00 Panel discussion:
Lucie Guibault, Séverine Dusollier, María J. Iglesias, University of Namur (Belgium), Jaak Järv, Estonian Academy of Sciences (Estonia), Benjamin Bajon, Max-Planck-Institut für Geistiges Eigentum, Wettbewerbs-und Steuerrecht (Germany)

Session 3: Open Access – An alternative to or a replacement for copyright
Moderation: Lucie Guibault

14:00 – 14:30 Stevan Harnad, UQAM (Canada) & University of Southampton (United Kingdom) (via teleconference)
Copyright Reform Should Not Be Made A Precondition For Mandating Open Access

14:30 – 15:00 Hélène Bosc, Euroscience Open Access Working (France)
Open access to the scientific literature: a peer commons open to the public

15:00 – 15:30 Panel discussion:
Stevan Harnad, Hélène Bosc, Rainer Kuhlen, Ji•i Rákosník, Academy of Sciences of the Czech Republic (Czech Republic), Jaak Järv, Estonian Academy of Sciences (Estonia)

Session 4: The Green Paper "Copyright in the Knowledge Economy"
Moderation: Gerald Spindler, University of Göttingen (Germany)

16:00 – 16:30 Rainer Kuhlen, Information Science, University of Konstanz (Germany)
Introduction to Green Paper

16:30 – 18:00 Workshop:
Green Paper on "Copyright in the Knowledge Economy"; elaboration of a common statement

Saturday – Nov 15, 2008

Session 5: Science communication and collaboration
Moderation: Michael Seadle, Institute for Library and Information Science, HU Berlin

9:30 – 10:00 Paul Ayris (UK), UNICA Scholarly Communications Group
The future of scholarly publication

10:00 – 10:30 Panel discussion:
Paul Ayris, Gerhard Fröhlich, University of Linz (Austria), Ágnes Téglási, Hungarian Academy of Sciences (Hungary), Rosa Nyárády, UNESCO chair in communication (Hungary), Ján Bako•, Slovak Academy of Sciences (Slovakia)

Session 6: Founding of the ENCES network: European Network for Copyright in support of Education and Science
Moderation: Rainer Kuhlen, University of Konstanz (Germany)

11:00 – 12:00 Workshop:
Green Paper "Copyright in the Knowledge Economy"; common statement and forming of ENCES ( = European Network for Copyright in support of Education and Science)

See this letter from 46 law professors and specialists in copyright law for a brilliant defense of the NIH Green OA Self-Archiving Mandate against the absurd charges of the publisher's lobby and its attorneys in the Conyers Bill.

I generally avoid the legal aspects of OA because I can see so clearly that 100% Green OA can be quickly and easily achieved without having to waste a single minute on legal obstacles (via the IDOA Mandate). But this is such an articulate and rigorous set of legal arguments that I could not resist posting them further just for the delight of the ineluctable logic alone.

Read, enjoy, admire, and rest assured that whether via the legalisticroute or just good, practical sense, OA will prevail. It is optimal, inevitable, and irresistible. The anti-OA lobby is wasting its money in trying to invoke law or laws to stop it; at best, they can just buy a bit more time. (But if universities and funders opt directly for IDOA mandates, that will deny the anti-OA lobby even that.)

Stevan Harnad
American Scientist Open Access Forum

PS Unless I am mistaken, one detects the unseen legal hand and mind of Peter Suber, plus a goodly dose of the seen hand and mind of Michael Carroll in the drafting of this legal and logical masterpiece.

From the OAK Law Project, an OA Guide for Authors written by Kylie Pappalardo (with the assistance of Professor Brian Fitzgerald, Professor Anne Fitzgerald, Scott Kiel-Chisholm, Jenny Georgiades and Anthony Austin):

"Understanding Open Access in the Academic Environment: A Guide for Authors [by Kylie Pappalardo (with the assistance of Professor Brian Fitzgerald, Professor Anne Fitzgerald, Scott Kiel-Chisholm, Jenny Georgiades and Anthony Austin)] aims to provide practical guidance for academic authors interested in making their work more openly accessible to readers and other researchers. The guide provides authors with an overview of the concept of and rationale for open access to research outputs and how they may be involved in its implementation and with what effect. In doing so it considers the central role of copyright law and publishing agreements in structuring an open access framework as well as the increasing involvement of funders and academic institutions. The guide also explains different methods available to authors for making their outputs openly accessible, such as publishing in an open access journal or depositing work into an open access repository. Importantly, the guide addresses how open access goals can affect an author’s relationship with their commercial publisher and provides guidance on how to negotiate a proper allocation of copyright interests between an author and publisher. A Copyright Toolkit is provided to further assist authors in managing their copyright."

Peter Murray-Rust: “Most chemistry publishing is closed access, not even allowing Green self-archiving (unless paid for). There is no sign that any of the major closed publishers (ACS, RSC, Wiley, Springer, Elsevier, Nature) are likely to change in the immediate future.”

Peter Murray-Rust is quite right that ACS is likely to be the very last of all publishers to go Green on OA self-archiving, but he is mistaken about most of the others on his list:

ACS: gray
RSC: GREEN
Wiley: GREEN
Springer: GREEN
Elsevier: GREEN
Nature: pale-green

PM-R: "Thanks Stevan. I am happy to be corrected on Wiley, Springer and Elsevier. I seem to remember that the RSC announced it was Green ca. 2 years ago. That got into Romeo but then they said they weren’t green after all and it was a mistake.

"I am also not really clear any more what pale-green is. I assume “gray” means neither gold nor green."

(1) Pale-green means the publisher endorses the self-archiving of the author’s draft but not the final refereed postprint (though often what the publisher really means by the postprint is the publisher’s PDF).

The difference between the author’s penultimate draft and the final, refereed draft is of course a purely notional one, and no faintly coherent case for the distinction could ever be made in a court of law. So although some superstitious authors make a distinction between pale-green publishers and green publishers, of course there is in reality no substantive difference: Both have given their blessing to the self-archiving of the author’s final draft.

(Gray does indeed mean neither Gold nor Green. But Gold OA publishers are of course, a fortiori, also Green. So the only relevant distinction at issue is Green vs. not-Green.)

(2) The RSC has some right royal double-talk in its contracts. They say they endorse self-archiving on the author’s “personal website”, but not the author’s “institutional repository”:

“When the author signs the exclusive Licence to Publish for a journal article, he/she retains certain rights that may be exercised without reference to the RSC. He/she may…

Photocopy the article and distribute such photocopies and distribute copies of the PDF… for personal or professional use only, provided that any such copies are not offered for sale…

Adapt the article and reproduce adaptations of the article for any purpose other than the commercial exploitation of a work similar to the original…

Make available the PDF of the article mentioned above via the personal website(s) of the author(s)…

This is of course arbitrary gibberish, and again only for the credulous and the superstitious. All RSC authors can self-archive their final drafts in their own IRs with perfect impunity. A “personal website” is merely a disk sector label. For the pedant, the university can (as Southampton ECS has done since 2002) formally declare an author’s IR disk sector to be the author’s “personal website”:

“3e. Copyright agreements may state that eprints can be archived on your personal homepage. As far as publishers are concerned, the EPrint Archive is a part of the Department’s infrastructure for your personal homepage.”

In a few years we will be giggling shame-facedly at the stuff and nonsense that kept (most of) us from going ahead and doing the optimal, inevitable and obvious for so long.

Stevan Harnad
American Scientist Open Access Forum

Robert Kiley [Wellcome Trust] wrote:

"Conscious that this licence only extends to "gold" OA articles, the Trust is continuing to work with publishers to explore the possibility of developing a similar licence for author manuscripts."

It's important that everyone understand clearly what is at issue here:

(1) The Wellcome Trust, the world's first research funder to mandate OA, has not only mandated Green OA self-archiving, but has also made funds available to authors to pay their publishers to make their articles Gold OA, in order to make them not just price-barrier-free (Green OA) but also permissions-barrier-free.

(2) This means that non-OA publishers, while continuing to receive full subscription revenue, are paid extra fees by Wellcome in exchange for the extra usage rights.

(3) There is no question that these extra usage rights are welcome and useful.

(4) The question is whether they are worth the extra money at this time.

(5) The problem is not only that the extra money is being diverted from research funds (at a time when research funds are getting ever scarcer and harder to come by).

(6) The problem is also that paying the publishers extra money is not a solution that scales: Wellcome may be able to afford it, but what about all the rest of the world's research output, unfunded by Wellcome?

(7) Can all funders afford (and do they wish) to divert scarce research funds to pay for extra publisher costs?

(8) And what about unfunded research?

(9) Can universities afford (and do they wish) to adopt OA mandates that also entail paying publishers extra fees? Should they want to?

(10) Perhaps most important: Are these extra (welcome, useful) usage rights worth making a fuss about just now, when we do not yet even have universal Green OA, or universal Green OA mandates?

(11) Will fussing about "fair use is not enough" at this time increase or decrease the probability that the world's research institutions and funders converge on a scaleable strategy that will at least deliver universal Green OA (at long last)?

(12) To repeat: It is not that the extra usage rights are not useful, desirable and welcome, nor that a large private research funder like Wellcome is not to be commended for being willing to put both their efforts and their money behind securing them.

(13) It is that this is not the time to focus on what universal Green OA mandates will not deliver.

(14) It is the time to put our full collective weight behind the solution that will scale up to deliver universal Green OA.

(15) (It is virtually certain that universal Green OA itself will then go on to usher in the extra usage rights -- at no extra charge.)

Stevan Harnad
American Scientist Open Access Forum