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On Wed, May 1, 2013 at 5:10 PM, BISSET J. <[log in to unmask]> wrote:
 
From our understanding of Elsevier policy this is not the case in two instances:

1) if the institution requires deposit in their institutional repository
2) if the funder requires open access.

Dear James,

Elsevier rights agreements state that authors retains the right to make their final drafts OA immediately upon publication: no embargo.

I will answer your more detailed questions below, but let me already give you a simple general answer from which all the specific ones can be deduced.

If a contract says you have the right to do X, then it cannot go on to stipulate that you only have the "right to exercise" your right to do X if you are not required to exercise it. That is empty double-talk, and can and should be completely ignored as empty. A right is a right; you either have it or you don't.

Moreover, Elsevier authors do not need Elsevier's permission to deposit in their IRs any more than they need Elsevier's permission to go to the WC! 

The only thing at issue is the right to make the deposit immediately OA (i.e., free online). And Elsevier (like Springer, and about 60% of all publishers) state that the author retains the right to make the final draft OA immediately upon publication: no OA embargo.

So all authors with any sense should go ahead and exercise that formally endorsed right that they retain!

I have an email from Elsevier today confirming that in either of the two cases above, immediate deposit is permitted but open access is not permitted until [after] an embargo period...

Elsevier is just playing on words here. As I said, the right to deposit is not at issue. Elsevier does not have any say over where I put my final draft. 

The only right at issue is the right to make the deposit immediately OA (i.e., free online).

Additionally, Durham has reissued its mandate for self-archiving, including a requirement that only those deposited (not necessarily open access) can be used for consideration in promotion or probation (the 'how' this will work us still being looked at - So this has not yet been registered anywhere).

Bravo on adopting the optimal institutional OA mandate. Soon we can hope that the Durham mandate will be reinforced by the very same mandate from HEFCE/REF: only articles whose final drafts were deposited in the author's institutional repository immediately upon acceptance for publication will be eligible for submission to the next REF (2020).

Institutional and HEFCE immediate-deposit mandates can then mutually reinforce one another, and institutions will be able to devise a simple mechanism for monitoring and verifying compliance.
 
Because we now mandate deposit, Elsevier have indicated we cannot make any publications open access until we sign an agreement with them - which includes restricting access from immediate upon publication (as it was without a mandate) to the embargo periods mentioned above.

This is very interesting: Have you asked yourself why Elsevier is asking for a second agreement? Isn't the author's signed agreement enough, if it is really sufficient to accord him a right yet prevent him from exercising that right?

Well obviously not, because of the double-talk I just mentioned. In an agreement with the clause

Clause C1: "You retain the right to do X" 

followed by the clause 

Clause C2: "but you may not "exercise your right" to do X if you are required to do X"

you are sanctioning a contradiction. Logically speaking (and contracts must obey logic as surely as they must obey the law), this is pretty much the same as simply saying:

Clause C1: "You may do X" 

and

Clause C2: "You may not do X."

With a logical contradiction, you can pretty much take your choice and do whatever you like, because anything (and the opposite of anything) follows from a contradiction.

A good choice would be to read sequentially, follow Clause 1, and simply ignore Clause 2, which just says the opposite. If challenged, cite clause 1.

And this is the real reason that Elsevier is not comfortable with relying on its signed author rights agreement with its authors as grounds for restraining them form doing what the retain the right to do if they are required to do it. So they instead try to get a signature to yet another agreement, from yet another party -- the university -- a further agreement tjat would have the (failed) intended effect of the author rights agreement: The institution must sign that it may not require the author to exercise his right to provide immediate OA.

Solution? Simple: The university should not sign! 

If Elsevier really thinks its author agreement has already seen to it that mandated authors may not provide immediate OA if required by his university, then there is no call for the university to sign a thing.

Of course, this is not quite the way Elsevier goes about trying to get the university to sign: It proposes a contingency, in confidential pricing negotiations, between the subscription deal it offers the university, and whether or not they require immediate OA.

This would be unethical if it weren't so ludicrous.

Of course the university should not sign away its right to mandate immediate-deposit because of a subscription-deal contingency.

But the solution is even simpler than that. Not only should the university not sign any agreement with Elsevier over what it may or may not require its researchers do, but the university should not worry too much about embargoes; it should simply implement the "Almost OA" email-eprint-request Button.

That way not only will the university's immediate-deposit mandate (with the help of the HEFCE/REF immediate-deposit mandate) ensure that all final drafts are immediately deposited and that at least 60% of those immediate-deposits (including all Elsevier deposits!) will be made immediately OA. But, in addition, even the those immediate-deposits that are from from the 40% of journals -- which (unlike Springer and Elsevier and APS and IOP and all the other publishers who are on the Side if the angels) try to embargo OA -- will be made "Almost OA", via the Button.

And with the help of the eprint Button, the ID/OA mandate will go on to make OA embargoes as ineffectual as Clause 2, once the immediate-deposit mandate becomes universal.

And a word about "systematicity": Systematically duplicating the contents of a journal would mean duplicating all of its contents. But a single institution just provides a tiny (and unsystematic) fraction of any journal's contents.

Globally mandated OA will be another story: But Elsevier cannot hope to persuade all universities worldwide to desist from mandating OA! (And it is noteworthy that Elsevier is not even trying to get research funders to sign "agreements" not mandate OA, or to extend OA embargoes; Elsevier's strategy there is lobbying, since they don't have the subscription discount carrot with which it lures naive universities into signing over their mandating rights in exchange for a better subscription Big-Deal.

However, if Alicia is indicating this new stance is a move away from that which I was told by Elsevier earlier today, and is still less than clearly indicated on their web pages (which indicate an author can comply by self-archiving, but then go on to list embargo periods which do not meet RCUK policy) then that is great news.

Alicia is just re-stating the Clause 1. Take her at her word.

Best wishes,

Stevan  

 
On 1 May 2013, at 14:49, "Stevan Harnad" <[log in to unmask]> wrote:

@AmSciForum Stevan - Elsevier's #oa agreement with RCUK, including gold & green options, is described here: http://www.elsevier.com/about/publishing-guidelines/policies/funding-body-agreements/research-councils-uk …

@wisealic Simple Question: Is/isn't Elsevier-like Springer-still Green on immediate, unembargoed #oa self-archiving?  http://j.mp/11B5gcg 


@AmSciForum yes, Elsevier endorses immediate self-archiving of accepted final drafts free for all on the web immediately upon acceptance.


@wisealic Thanks Alicia. Then Elsevier remains on Side of the Angels & I will continue to attest to that!