On 17-Feb-09, at 9:21 AM, [log in to unmask] wrote:
> Let me make my position clear. Comments that I make have no legal
> authority. I take no responsibility for any actions a reader might
> take (or not take) as a result of reading my opinion, and that in
> any cases of doubt, readers should take formal legal advice. Anyone
> who advises third parties to do something that is potentially
> infringing without such a health warning could find themselves
> accused by rights owners of authorising infringement, which means
> they would be just as liable to pay damages as the person who took
> the advice.
>
> I agree with Talat that 100% OA is not necessarily inevitable,
> despite my hope that it does come to pass. Just because something is
> technically possible and makes economic sense does not mean it is
> bound to occur.
Let me make my position clear.
Comments that I make have no legal authority.
Nor am I addressing 3rd parties.
(I am addressing only the authors of refereed journal articles.)
And all I am advising is that they not take leave of their common
sense in favor of far-fetched flights of formal fancy -- especially
incoherent ones.
Amen.
Johannes
>
>
> Charles
>
>
> Professor Charles Oppenheim
> Head
> Department of Information Science
> Loughborough University
> Loughborough
> Leics LE11 3TU
>
> Tel 01509-223065
> Fax 01509 223053
> e mail [log in to unmask]
> -----Original Message-----
> From: Repositories discussion list [mailto:[log in to unmask]
> ] On Behalf Of Talat Chaudhri
> Sent: 17 February 2009 12:51
> To: [log in to unmask]
> Subject: Re: John Wiley on RoMEO and John the Baptist on
> Supererogation
>
> This may be your view, Stevan, but it is frankly inappropriate to
> tell others to break the law at their own risk, whatever your views
> in terms of OA. That is their risk assessment, the business of their
> institutions and nobody else's. Clearly the copyright system is
> incoherent and difficult, but nonetheless these publishers have
> indisputable copyright and may licence it as they please, even
> incoherently. The upshot is unknown, of course, as nothing has ever
> been tested, and this may continue for better or for worse, probably
> a mix of both.
>
> I hope others on this list will agree with me that we should not
> tell other institutions how to manage their legal liabilities, much
> as we would not do so for individuals of our personal acquaintance,
> especially in ignorance of both their specific circumstances and the
> precise legal situation. No doubt you will continue to do so despite
> my protestation, but I feel duty bound to voice this complaint on
> behalf of repository managers and their institutions, amongst whose
> number I was counted until very recently.
>
> There is no evidence that OA is such a foregone conclusion as you
> say, much as I would like it to be true as much as you do. We deal
> here with practical issues, not with your imagined "Zeno's paradox",
> which nobody but you discusses on this list.
>
>
> Talat Chaudhri
>
> Stevan Harnad wrote:
>> On 17-Feb-09, at 4:32 AM, Ian Stuart wrote:
>>
>>> Leslie Carr wrote:
>>>>
>>>> HOWEVER one step away (literally) from the W-B "Best Practice
>>>> document" is the W-B "Copyright FAQ" in which they elaborate that
>>>> although the ELF is used for societies, the wholly owned journals
>>>> still retain the practice of Copyright Assignment. The sample
>>>> Copyright Assignment document (for the aptly chosen International
>>>> Headache Society) contains the following text:
>>>> ---- quote ----
>>>> Such preprints may be posted as electronic files on the author's
>>>> own
>>>> website for personal or professional use, or on the author's
>>>> internal university, college or corporate networks/intranet, or
>>>> secure external website at the author's institution, but not for
>>>> commercial sale or for any systematic external distribution by a
>>>> third party (e.g. a listserve or database connected to a public
>>>> access server).
>>>> ----- end -----
>>>> I *think* that an institutional repository is OK by that
>>>> definition.
>>>> After all, it is a secre external website at the author's
>>>> institution which is not offering the item for sale nor run by a
>>>> third party.
>>>
>>> Where does this leave the Subject Repository (ex aXive)?
>>> It's not the authors own website, or an intranet at the authors
>>> local
>>> institution, or an external server at the authors institution... yet
>>> it also doesn't offer commercial sales or *systematic*[my emphasis]
>>> distribution to a third party
>>>
>>> Where does this leave the Depot?
>>> It's /effectively/ an Institutional Repository, but like aXive it's
>>> not at the authors institution.
>>>
>>> .... or is this one of those questions one shouldn't really ask?
>>
>> Here's my tuppence worth on this one -- and it's never failed me (or
>> anyone who has applied it, since the late 1980's. when the
>> possibilities first presented themselves) as a practical guide for
>> action: (A shorter version of this heuristic would be "/If the
>> physicists had been foolish enough to worry about it in 1991, or the
>> computer scientists still earlier, would we have the half-million
>> papers in Arxiv or three-quarter million in Citeseerx that we have,
>> unchallenged, in 2009?/"):
>>
>> *When a publisher starts to make distinctions that are more minute
>> than can even be made sense of technologically, and are
>> unenforceable,
>> ignore them:*
>>
>> The distinction between making or not-making something freely
>> available on the Web is coherent (if often wrong-headed).
>>
>> The distinction between making something freely available on the web
>> /here/ but not /there/ is beginning to sound silly (since if it's
>> free
>> on the web, it's effectively free /everywhere/), but we swallow it,
>> if
>> the "there" is a 3rd-party rival free-riding publisher, whereas the
>> "here" is the website of the author's own institution. /Avec les
>> dieux
>> il y a des accommodements/: Just deposit in your IR and port metadata
>> to CRs.
>>
>> But when it comes to DEPOT -- which is an interim "holding space"
>> provided (for free) to each author's institution, to hold deposits
>> remotely until the institution creates its own IR, at which time they
>> are ported home and removed from DEPOT -- it is now bordering on
>> abject absurdity to try to construe DEPOT as a "3rd-party rival
>> free-riding publisher".
>>
>> We are, dear colleagues, in the grip of an orgy of pseudo-juridical
>> and decidedly supererogatory hair-splitting/ on which nothing
>> whatsoever hinges but the time, effort and brainware we perversely
>> persist in dissipating on it/.
>>
>> This sort of futile obsessiveness is -- in my amateur's guess only --
>> perhaps the consequence of two contributing factors:
>>
>> (1) The agonizingly (and equally absurdly) long time during which
>> the research community persists in its inertial state of Zeno's
>> Paralysis about self-archiving (a paralysis of which this very
>> obsession with trivial and ineffectual formal contingencies is
>> itself one of the symptoms and causes). It has driven many of us
>> bonkers, in many ways, and this formalistic obsessive-compulsive
>> tendency is simply one of the ways. (In me, it has simply fostered
>> an increasingly curmudgeonly impatience.) The cure, of course, is
>> deposit mandates.
>>
>>
>> and
>>
>> (2) The substantial change in mind-set that is apparently required
>> in order to realize that/ OA is not the sort of thing governed by
>> the usual concerns of either library cataloguing/indexing or
>> library rights-management/: It's something profoundly different
>> because of the very nature of OA.
>>
>>
>> Rest your souls. Universal OA is a foregone conclusion. It is
>> optimal,
>> and it is inevitable. The fact that it is also proving to be so
>> excruciatingly -- and needlessly -- slow in coming is something we
>> should work to remedy, rather than simply becoming complicit in and
>> compounding it, by giving ourselves still more formalistic trivia
>> with
>> which to while away the time we are losing until the obvious happens
>> at long last.
>>
>> Bref: Yes, this is "one of those questions one shouldn't really ask"!
>>
>> Yours curmudgeonly,
>>
>> Your importunate archivangelist
>>
>
> --
> Dr Talat Chaudhri
> ------------------------------------------------------------
> Research Officer
> UKOLN, University of Bath, Bath BA2 7AY, Great Britain
> Telephone: +44 (0)1225 385105 Fax: +44 (0)1225 386838
> E-mail: [log in to unmask] Skype: talat.chaudhri
> Web: http://www.ukoln.ac.uk/ukoln/staff/t.chaudhri/
> ------------------------------------------------------------
|