---------- Forwarded message ----------
Date: Wed, 20 Feb 2008 22:57:17 -0500
From: Michael Carroll <[log in to unmask]>
To: [log in to unmask]
Subject: Copyright and OA

Further to Stevan's and my exchange in the blogosphere, I've written,
http://carrollogos.blogspot.com/2008/02/copyright-and-oa-response-to-stevan.html

Copyright and OA - Response to Stevan Harnad

Prompted by differences of opinion about the Harvard FAS policy, I
want to clarify where Stevan Harnad and I agree and disagree about the
relationship between copyright and open access.

I understand Stevan's position to be:

1. Open Access policies should conceptually separate a requirement
to deposit an electronic copy of a post-peer-review manuscript in a
repository from a requirement that the repository make that copy publicly
accessible on the Web.

2. Deposit at the time the manuscript is accepted for publication should
be unconditionally required.

3. Public access should be allowed any time the publisher's agreement
says it may be.

4. If the publication agreement does not permit posting of the manuscript,
a repository may still distribute copies by email whenever requested to
do so by a user.

5. The combination of 3 and 4 effectively provide open access.

6. Those who argue that open access should also include an explicit
public copyright license giving the public more than the right to read
(e.g., the rights to republish or to translate or otherwise adapt the
work) are mistaken. Either (a) these rights have already been implicitly
granted by the public posting of the work; (b) they are not necessary to
effective scholarly communication; or (c) even if they would marginally
improve scholarly communication, the costs of negotiating copyright with
publishers is not worth this benefit.

My response:

Points 1 and 2 are exactly right. Under U.S. copyright law, it is a fair
use for an author to send, and for a repository to make, an archival copy
of the post-peer-review manuscript. I think it's also a fair use to make
an archival copy of the published version of the article. Copyright law
in many other parts of the world also would deem this to be legal.

Deposit mandates are highly desirable. Please note that under the Harvard
policy, even if a faculty author feels it necessary to seek a waiver of
the copyright license to Harvard, there is no reason that author couldn't
and shouldn't deposit a copy of the manuscript in the repository.

With respect to public access, I disagree that faculty authors
should simply adapt themselves to the arrangements that publishers
offer/demand. Moreover, I have have a different view about what those
arrangements permit.

So, on point 3, I agree insofar as authors should use all legal rights
they have to make their work freely accessible on the Internet. If a
publication agreement gives the author the right to post the work in a
repository, the author should do so and the repository should make the
work freely accessible.

However, I don't think that the starting point for the analysis should
be what the publisher's form says. I think authors have an obligation
to consider whether signing the publisher's form is ethical behavior.

Copyright is an author's right granted to the author by the public to
achieve a public purpose - the promotion of science and useful arts. (I
realize that many have a natural rights view of copyright's purpose. I
don't share that view.) With rights come responsibilities. Authors of
scholarly journal articles do not need the promise of a royalty to have
an incentive to perform research or report the results and their analysis
of that research. So although the premise of one-size-fits-all copyrights
is that authors need exclusive rights to be stimulated to create, that
premise is largely false with respect to much scholarly research.

Journal article authors know that they will not receive a royalty
nor will those who provide referee services. Instead, the progress of
science and useful arts is driven by these authors' desire to achieve
broad dissemination of their research. The Internet opens up a (not so)
new avenue of scholarly communication. Thus, journal article authors
have a duty to consider whether they are making proper use of the
copyrights that the public has given them when they agree to the terms
of a publisher's agreement that limit how, when or where the author may
provide free access to their work on the Internet.

I have a different understanding about the legal consequences of number 4,
and therefore I also do not agree with number 5.

As for number 6, clarifying re-use rights through public licensing is
desirable. If his view is (a) or (b) I disagree. If his view is (c),
however, I agree that the effort necessary to achieve this goal should
be subject to cost-benefit analysis. Under current circumstances, where
subscription-funded publishers have shown some willingness to permit
free access to post-peer-review manuscripts but have not been willing
to agree to public licensing, I think an author could responsibly decide
to be satisfied with a copyright agreement that permits free access but
does not provide for re-use licensing.

Stevan responded:

Upgrade Harvard's Opt-Out Copyright Retention Mandate By Adding a
No-Opt-Out Deposit Mandate: No Loss, Only Gain

Michael Carroll, Peter Suber and I are in complete agreement on every
point of substance save one: What is the mandate that is the most likely
to generate the most OA?

Michael and Peter (and Harvard!) think it is a Copyright Retention
Mandate with opt-out (CRM). I think it is a Deposit Mandate without
opt-out (DM), which can be trivially added to the Copyright Retention
Mandate with opt-out (CRM).

In other words, Harvard can have its (CRM) cake, and eat it (DR) too!

That contingency is completely missing in Michael's analysis of my
proposal.

Michael points out that even if a Harvard author opts out of CRM, he
can still deposit his article if he wishes to.

But if voluntary deposit -- just for the sake of the benefits of OA,
or just because one's university or funder had invited deposit -- had
been capable of generating enough OA, then (1) mandates would not be
necessary, (2) NIH's invitation policy would not have failed and would
not now have had to be upgraded to an immediate deposit mandate, and (3)
the hundreds of institutional repositories with invitations instead of
mandates worldwide would not be hovering for years at spontaneous deposit
rates of 15% while the (still few) mandated repositories approach 100%
within two years.

An opt-out mandate is not a mandate. That is why I urge that the Harvard
opt-out CRM mandate be upgraded to add a non-opt-out DM clause. Absolutely
nothing is lost, and a great deal is gained.

For the papers whose authors can and do opt for CRM, Harvard will have
immediate OA. For the papers whose authors opt out of CRM, Harvard will
still have 100% immediate deposit, with immediate OA for about two thirds
of it and almost-OA for the remaining third.

(Even if it is assumed that the articles for which the authors opt for
CRM are identical to the deposits that could have been set to immediate
OA anyway, there is still the gain of one third almost-OA and 100%
deposit with DM+CRM but not with CRM alone.)

I hope that makes the logic and the contingencies of my proposal still
clearer. I might add that exactly the same logic was used in designing
the ID/OA (immediate-deposit, optional-access) mandate itself (the one
Peter calls the Dual Deposit/Release mandate):

There the logic was that if an institution could not reach agreement on
adopting the stronger immediate OA mandate (for copyright reasons, say),
then it makes no sense to adopt a delayed-deposit mandate, or, worse,
an opt-out "mandate," which allows the publisher's embargo policy to
determine that date at which the deposit is made:

It makes far more sense to mandate immediate deposit in every instance,
with the publisher's embargo policy applicable only to the date on which
the deposit is made OA ("released"), thereby allowing almost-OA to tide
over the embargo, thanks to the Button.

Last point: my position would be closest to Michael Carroll's option
"(c) even if they would marginally improve scholarly communication, the
costs of negotiating copyright with publishers is not worth this benefit"
-- except that it is not exactly the benefits of OA I am talking about
here but the benefits of a successful OA mandate. (Because every opt-out
means no OA.)

Once immediate deposit is safely mandated universally, and it has
generated free online access for researchers worldwide to all refereed
postprints, we can examine at our leisure what else researchers needed
that didn't already come with that free online territory.

But please, let's get there first, and not be held back by pre-emptively
over-reaching (and thus inviting opt-out) when 100% free online access is
already within our grasp -- if only we manage to mandate the keystrokes!

Stevan Harnad