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They do, true, but then you get a situation where you pay to publish in gold OA journals, which discriminates against authors not affiliated to institutions in richer countries with the ability to pay, junior academics seeking posts etc. I'm not sure that is an especially good idea. Correct me if I'm wrong, but I don't see a flood of authors towards gold OA. Personally I don't anticipate any, but we shall see... Perhaps we can leave this argument for another day, however?! Talat leo waaijers wrote: > And then to think that all these bothers evaporate when you publish in > an Open Access journal! Leo. > > Talat Chaudhri wrote: >> Hi all, >> >> Thanks, John, for the concrete answer on a specific case. It's >> highly interesting because Wiley are one of the publishers who oppose >> "green" OA, apparently. However, it's only indicative of Wiley's >> approach rather than the actual legal situation in any given country. >> I did not ask for an answer "from the pulpit" as S Harnad explicitly >> gave, but "from the bar", i.e. a legally competent one. Many thanks, >> Charles, for your clear legal opinions, and thanks to everyone else >> for their very interesting contributions. I particularly note Les >> Carr's balanced and reasonable synopsis, which I think is the real >> situation as best we can know at present. Finally, thanks to Ricky >> for the initial question and to Ian for his useful comment on the >> technical aspects of this, in case by this time they had been forgotten. >> >> I think highlighting this issue again has proved to be worthwhile >> despite the storm of protests - as before, Arthur, your comments >> clearly do not stand, or else I would not expect such a storm of >> independent objections from others on the list (nor do you >> distinguish, as before, between Australian law as you interpret it >> and other jurisdictions which you fail to mention at all). If I am as >> clearly wrong as you say, I find it difficult to see why Charles has >> raised specific legal objections to your opinions, as he is clearly >> better placed than many of us to do. There is clearly a lot of >> polemic on this issue from various standpoints, which is all quite >> understandable. However, I'd like to remind people that beliefs, >> whether mine or anybody else's, are not the same as a clear statement >> of the law. In it's very nature, the law contains ambiguities until >> clear rulings are given and often heterogenous legislation >> interpreted by various courts. It remains apparent from the argument >> that what constitutes a legal copy in the electronic domain is itself >> in doubt, let alone whether one may keep a copy in a repository or >> anywhere else against specific advice from a publisher who owns the >> copyright. There is a wealth of conflicting precedent which is not >> legally sorted out in any jurisdiction to the best of any of our >> knowledge, it is evident. I'm sorry to say that the protests of the >> archi-evangelists seem to be based purely on ideology and thin air. >> Though I support that ideology in its core aims, if not all of its >> methods, I'd recommend that people are careful not to believe there >> is complete legal clarity where there may not be. Consequently I will >> continue to advise anybody to err on the side of caution, until >> somebody can provide case evidence. Repository managers must assess >> their own risks on behalf of their institutions, not follow someone >> else's blueprint. >> >> All the same, Stevan is correct in one respect, that one can easily >> worry excessively about this. The sheer volume of cases, should his >> view turn out to be incorrect, would make such a legal mess that I >> doubt it would be in the interests of any publisher to sue every >> repository and academic they could lay their hands on, in the process >> ruining their own industry. Thus the issue may never be tested, I >> shouldn't wonder. It is worth noting that there are so many >> jurisdictions involved that it's almost certain that the situation >> would not be as uniform as Arthur and Stevan indicate. The example of >> recent legal developments in Germany with regard to IP demonstrates >> this quite well. Anyway, institutions will have to be aware that they >> will always need to assess and balance potential risks. >> >> On the related issue of pre-print and post-print, and whether the >> rights transferred over the latter extend to the former, isn't it >> fair to say that this depends heavily on how similar they are? If the >> latter is almost identical to the former, which must happen >> frequently, then it is hard to say how these are different >> intellectual property. On the other hand, it must frequently be true >> that the latter contains significant changes in content from the >> former, in which case one might reasonably say it is a different, >> derived intellectual property. Is that not reasonable? But again, how >> the rights over the two inter-relate might well be a grey area, >> albeit taking into account all of the fair comments about sale of >> copyright not binding earlier licences to make copies etc., and not >> all situations would necessarily be identical, I feel. >> >> Once again, many thanks to all for their interesting answers on this >> clearly emotive issue. >> >> >> Talat >> >> J.W.T.Smith wrote: >>> Talat, >>> >>> I know of a case (only last week) where a lecturer here at Kent >>> requested an e-copy of her paper to send to someone who asked for a >>> copy of her paper and the copy was supplied by the publisher >>> (Wiley). The publisher's site offers a reprint supply service and >>> this was part of that. >>> >>> If a publisher is prepared to supply an e-copy on request to an >>> author for the express purpose of sending a copy to an individual it >>> does appear they don't see this as a problem. It may be, of course, >>> that Wiley's author contract has a specific clause allowing this >>> action so in this case it doesn't depend on 'fair use'. >>> >>> Regards, >>> >>> John Smith, >>> University of Kent, UK. >>> ________________________________________ >>> From: Repositories discussion list >>> [[log in to unmask]] On Behalf Of Talat Chaudhri >>> [[log in to unmask]] >>> Sent: 13 February 2009 15:56 >>> To: [log in to unmask] >>> Subject: Re: Fair-Use/Schmair-Use... >>> >>> Yes, as Charles points out, the only way of doing it legally is to get >>> the author to give permission to a private requester. The technology >>> used has to allow for that, with an appropriate security mechanism to >>> make sure nobody else gets it. >>> >>> I've never been clear whether a repository has a right to store such a >>> copy on a restricted basis in the first place if the publisher says it >>> may not, but it's often contended that this is allowed for >>> administrative purposes. Since repositories are demonstrably not >>> intended for that, and since the button is in place in such a scenario, >>> the intent seems to me to be to solicit requests and therefore to >>> redistribute. To my uninformed mind that would look like storing a copy >>> in breach of copyright. The response I've had in the past from Stevan >>> Harnad and others is, uncharacteristically I might add, that >>> repositories may serve purposes other than distributing content on the >>> web. I find it hard to credit that any court would be as simple-minded >>> as to swallow that argument, should the issue ever arise. It hasn't >>> come >>> to court so far, so let's hope it never does. Perhaps any such case >>> would be unprovable anyway, but it would be nice to know the legal >>> position on storing a copy in a retrieval system, as one often sees the >>> phrase in copyright statements in published books. >>> >>> Perhaps Charles has the answer to this? Clearly if one can't store a >>> copy, the issue of the button would never arise unless the publisher >>> specifically allowed a restricted-access copy to be held, rather >>> contrary to the purpose of their opposition to OA and presumably thus a >>> rare occurrence. If there are reasonable legal grounds to hold a >>> restricted-access copy in a repository despite the publisher's lack of >>> permission, then the issue evaporates. >>> >>> >>> Talat >>> >>> Richard Rankin wrote: >>> >>>> I may have misunderstood the thread >>>> >>>> I had read it that the eprint request would automatically email the >>>> paper without intervention from the author. >>>> >>>> Is it that the eprint request sends a message to the author to >>>> email the paper? >>>> >>>> Ricky >>>> >>>> ________________________________________ >>>> From: Repositories discussion list >>>> [[log in to unmask]] On Behalf Of Talat Chaudhri >>>> [[log in to unmask]] >>>> Sent: 13 February 2009 15:32 >>>> To: [log in to unmask] >>>> Subject: Re: Fair-Use/Schmair-Use... >>>> >>>> Any transport protocol would seem fine provided that the author's >>>> active >>>> consent is incorporated into the process for each personal request. >>>> Unfortunately, HTTP doesn't work that way. I suppose the system could >>>> instead send a unique authentication code by email to the person who >>>> wanted to see it by HTTP whereas normally it would be restricted, >>>> but it >>>> would have to work only once in case they shared it against the >>>> author's >>>> wishes - so what would be the advantage over sending it by email? >>>> Unless >>>> of course one has an account on the repository or another linked >>>> service, again requiring the author's permission - but are people >>>> really >>>> going to use one FB-type service for academia and request/give >>>> permissions through it? Isn't it simpler to use email? >>>> >>>> Ian Stuart wrote: >>>> >>>> >>>>> Ricky Rankin wrote: >>>>> >>>>> >>>>>> Sorry to return to this. >>>>>> >>>>>> As I understand the arguement goes that by including a eprint >>>>>> request >>>>>> link/button it is OK to email the publishers pdf as this is the same >>>>>> as sending a copy through the post. >>>>>> >>>>>> A computing colleague has asked why is ths different than displaying >>>>>> the pdf on the screen of the requester's screen as http is just >>>>>> another transport protocol? >>>>>> >>>>>> >>>>> The difference is that the paper is not Openly available: The author >>>>> of the paper makes a concious decision to produce a copy for a fellow >>>>> academic >>>>> >>>>> An Open Access (true Open Access) article would have the paper >>>>> available without restriction. >>>>> >>>>> >>>>> >>>> -- >>>> 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/ >>>> ------------------------------------------------------------ >>>> >>> >>> -- >>> 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/ >>> ------------------------------------------------------------ >> -- 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/ ------------------------------------------------------------