Here is a reply from Daniel Kulp of the American Physical Society (APS).

The APS is also, like Elsevier, a publisher with a formal Green OA
author rights-retention policy. 

If Elsevier is looking for an optimal model Green OA policy, to
be "encouraged, celebrated, & recognized," it is that of the
APS (since at least 1999!):
http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/0472.html

But it is not even necessary for Elsevier to go as far as the APS 
has gone in order to earn again the right to be "encouraged, 
celebrated, & recognized" for its Green OA author rights-
retention policy.

It is just necessary to drop from what has otherwise been
Elsevier's commendable Green OA author agreement
policy on author rights-retention since 2004 --

"[As Elsevier author you retain] the right to post a revised 
personal version of the text of the final journal article 
(to reflect changes made in the peer review process) 
on your personal or institutional website or server for 
scholarly purposes...

-- the clause that contains the following piece  of unmitigated 
FUD that (if authors and institutions don't ignore it completely, 
as they should) contradicts everything that came before it:

"(but not in... institutional repositories with mandates 
for systematic postings unless there is a specific
agreement with the publisher)."

An author right is either retained or it is not. And if
it is a right, and it is retained, then the author can
exercise that right irrespective of whether the
author's institution mandates that the author
should exercise the right.

It is as simple as that. And any attempt by Elsevier
to defend retaining the clause is just more FUD:
A right is a right (and a formal publisher agreement 
attesting that it is a right is only an agreement) only 
if the agreed author right  can be exercised without
requiring further publisher agreement.

Stevan Harnad

Begin forwarded message:

> From: LIBLICENSE <[log in to unmask]>
> Date: May 14, 2012 11:39:38 PM EDT
> To: <[log in to unmask]>
> Subject: Re: Elsevier's query re: "positive things from publishers that should be encouraged, celebrated, recognized"
> Reply-To: LibLicense-L Discussion Forum <[log in to unmask]>
> 
> From: Daniel Kulp <[log in to unmask]>
> Date: Mon, 14 May 2012 12:21:08 -0400
> 
> In response to Alicia and Stevan's recent exchange:
> 
> The American Physical Society (APS) has had a collaborative
> relationship with authors and their institutions concerning "green"
> open access and derivative works for years.  It has been in the
> interest of the Society to help support authors' efforts to
> disseminate
> their results in a way that maintains the financial stability of the
> journals.  Within our standard Copyright Transfer Agreement we
> allow the following concerning the posting of the final APS version
> and the updated author's version on different websites and
> e-print servers, and rights associated with derivative works.
> 
> POSTING APS VERSION:
> 
> (3) The right to use all or part of the Article, including the
> APS-prepared version without revision or modification, on the
> author(s)’ web
> home page or employer’s website and to make copies of all or part of
> the Article, including the APS-prepared version without revision or
> modification, for the author(s)’ and/or the employer’s use for
> educational or research purposes.
> 
> UPDATED VERSION ON E-PRINT SERVER:
> 
> (4) The right to post and update the Article on free-access e-print
> servers as long as files prepared and/or formatted by APS or its
> vendors are not used for that purpose. Any such posting made or
> updated after acceptance of the Article for publication shall include
> a link to the online abstract in the APS journal or to the entry page
> of the journal. If the author wishes the APS-prepared version to be
> used for an online posting other than on the author(s)’ or employer’s
> website, APS permission is required; if permission is granted, APS
> will provide the Article as it was published in the journal, and use
> will be subject to APS terms and conditions.
> 
> DERIVATIVE WORKS:
> 
> (5) The right to make, and hold copyright in, works derived from the
> Article, as long as all of the following conditions are met: (a) at
> least one author of the derived work is an author of the Article; (b)
> the derived work includes at least ten (10) percent of new material
> not covered by APS’s copyright in the Article; and (c) the derived
> work includes no more than fifty (50) percent of the text (including
> equations) of the Article. If these conditions are met, copyright in
> the derived work rests with the authors of that work, and APS (and its
> successors and assigns) will make no claim on that copyright. If these
> conditions are not met, explicit APS permission must be obtained.
> Nothing in this Section shall prevent APS (and its successors and
> assigns) from exercising its rights in the Article.
> 
> APS has other open access programs and initiatives that I am more than
> willing to talk about (feel free to email me if you have questions);
> however, I will stop here since the points above respond more directly
> to the thread.
> 
> Daniel T. Kulp
> Editorial Director
> American Physical Society