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JISC-REPOSITORIES  May 2012

JISC-REPOSITORIES May 2012

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Subject:

Elsevier requires institutions to seek Elsevier's agreement to require their authors to exercise their rights?

From:

Stevan Harnad <[log in to unmask]>

Reply-To:

Stevan Harnad <[log in to unmask]>

Date:

Mon, 14 May 2012 05:55:36 -0400

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (321 lines)

I am grateful to Elsevier's Director for Universal Access, Alicia
Wise, for replying about Elsevier's author open access posting policy.

This makes it possible to focus very quickly and directly on the one
specific point of contention, because as it stands, the current
Elsevier policy is quite explicitly self-contradictory:

> ALICIA WISE (AW):
> Stevan Harnad has helpfully summarized Elsevier’s posting policy for
> accepted author manuscripts, but has left out a couple of really important
> elements.
>
> He is correct that all our authors can post voluntarily to their websites
> and institutional repositories.  Posting is also fine where there is a
> requirement/mandate AND we have an agreement in place.  We have a growing
> number of these agreements.

I am afraid this is not at all clear.

What does it mean to say that Elsevier has a different policy
depending on whether an author is posting voluntarily or mandatorily?

An author who wishes to comply with an institutional posting mandate
is posting voluntarily. An author who does not wish to comply with an
institutional posting mandate refrains from posting, likewise
voluntarily.

The Elsevier policy in question concerns the *rights* that reside with
*authors*. Is Elsevier proposing that some author rights are based on
mental criteria? But if an authors says, hand on heart, "I posted
voluntarily" (even where posting is mandatory) is the author not to be
believed?

(It is true that in criminal court a distinction is made between the
voluntary and involuntary -- but the involuntary there refers to the
unintended or  accidental: Even in mandated posting, the posting is no
accident!)

So it is quite transparent that the factor that Elsevier really has in
mind here is not the author's voluntariness at all, but whether or not
the author's *institution* has a mandatory posting policy - and
whether that institutional mandate has or has not been "agreed" with
Elsevier.

But then what sort of an *author* right is it, to post if your
institution doesn't require you to post, but not to post if your
institution requires you to post (except if some sort of "agreement"
has been reached with Elsevier that allows the institution to require
its researchers to exercise their rights)?

That does not sound like an *author* right at all. Rather, it sounds
like an attempt by Elsevier to redefine the author right so as to
prevent each author's institution from requiring the author to
exercise it without Elsevier's agreement. By that token, it looks as
if the *author* requires Elsevier's agreement to exercise the right
that Elsevier has formally recognized to rest with the author.

(What sort of right would the right to free speech be if one lost that
right whenever one was required -- say, by a court of law, or even
just an institutional committee meeting -- to exercise it? -- And what
does it mean that an author's institution is required by a publisher
to seek an agreement from the publisher for its authors to exercise a
right that the publisher has formally stated rests with the author?)

> AW:
> An overview of our funding body agreements can be read here:
> www.elsevier.com/wps/find/authorsview.authors/fundingbodyagreements .
> These agreements, for example, mean that we post to UKPMC for authors
> who receive funding from a number of funding agencies including the
> Wellcome Trust.  We deposit manuscripts into PMC for NIH-funded authors.

We are talking here very specifically about authors posting in their
own institutional repositories, not about institution-external deposit
or proxy deposit by publishers.

> AW:
>  Posting in the arXiv is fine too.

Is it? So if institutions mandate depositing in Arxiv rather than
institutionally, that would be fine too? (Some mandates already
specify that as an option.) Or would Elsevier authors lose their right
to exercise their right to post in Arxiv if their institutions
mandated it...?

> AW:
> We are also piloting open access agreements with a growing number of
> institutions, including posting in institutional repositories.

The point under discussion is Elsevier authors' right to exercise the
right that Elsevier has formally stated rests with the author -- to
post their accepted author manuscripts institutionally. What kind of
further *agreement* is needed from the author's institution with
Elsevier in order that the author should have the right to exercise a
right that Elsevier has formally stated rests with the author?

Again, Elsevier's target here is very obviously not author rights at
all. Rather, the clause in question is an attempt to influence
institutions' own policies, with their own research output, by trying
to redefine the author's right to post an article online free for all
as being somehow contingent on institutional research posting policy,
and hence requiring Elsevier's agreement.

It would seem to me that institutions would do well to refrain from
making any agreement with Elsevier (or even entering into discussion
with Elsevier) about institutional policy -- other than what price
they are willing to pay for what journals (even if Elsevier reps
attempt to make a quid-pro-quo deal).

And it would seem to me that Elsevier authors should go ahead and post
their accepted author manuscripts in their institutional repositories,
voluntarily, exercising the right that Elsevier has formally
recognized as resting with the author alone since 2004, and ignore any
new clause that contains double-talk trying to make a link between the
author's right to exercise that author right and the policy of the
author's institution on whether or not the author should exercise that
right.

> AW:
> It is already clear that one size does not fit all institutions, and we are keen
> to continue learning, listening, and partnering.

I am not sure what this means. Accepted author manuscripts (of journal
articles, from all institutions, in all disciplines) fit into all
institutional repositories.  That's all that's at issue here. No
institution differences; no discipline differences.

> AW:
> Our access policies can be read in full at
> www.elsevier.com/wps/find/intro.cws_home/access_policies (health warning:
> they are written for those who really enjoy detail) and we’ve been working
> on a more friendly and succinct summary too (but this is still a work in
> progress).

Only two details matter:

1. Does Elsevier formally recognize that "all [Elsevier] authors can
post voluntarily to their websites and institutional repositories"
(quoting from Alicia Wise here)?

According to Elsevier formal policy since 2004, the answer is yes.

2. What about the "not if it is mandatory" clause?

That clause seems to be pure FUD and I strongly urge Elsevier -- for
the sake of its public image, which is right now at an all-time low --
to drop that clause rather than digging itself deeper by trying to
justify it.

The goal of the strategy is transparent:

"We wish to appear to be supportive of open access, formally encoding
in our author agreements our authors' right to post their accepted
author manuscripts to their institution's open access repository --
but [to ensure that publication remains sustainable,' we wish to
prevent institutions from requiring their authors to exercise that
right unless they make a side-deal with us."

Not a commendable publisher strategy, at a time when the worldwide
pressure for open access is mounting ever higher, and subscriptions
are still paying the cost of publication, in full, and handsomely.

If there is eventually to be a transition to hybrid or Gold OA
publishing, let that transition occur without trying to hold hostage
the authors' right to provide Green OA to their author accepted
manuscripts by posting them free for all in their institutional
repositories, exercising the right that Elsevier has formally agreed
rests with the author.

Stevan Harnad

> From: [log in to unmask] [mailto:[log in to unmask]] On Behalf
> Of Peter Murray-Rust
> Sent: 13 May 2012 16:51
> To: Global Open Access List (Successor of AmSci)
> Cc: LibLicense-L Discussion Forum
> Subject: [GOAL] Re: Elsevier's query re: "positive things from publishers
> that should be encouraged, celebrated, recognized"
>
>
>
>
>
> On Sun, May 13, 2012 at 4:06 PM, Stevan Harnad <[log in to unmask]> wrote:
>
> ** Cross-Posted **
>
>
> On Sat, May 12, 2012 at 4:49 PM, Peter Murray-Rust <[log in to unmask]> wrote:
>>
>> On Sat, May 12, 2012 at 9:10 PM, Stevan Harnad <[log in to unmask]>
>> wrote:
>>>
>>
>> Stevan,
>> Could you please explain this clause? (This is my ignorance as I don't
>> publish with Elevier and so am unfamiliar with their author-side
>> contracts).
>> Does it mean that Elsevier sometimes allows Green Open Access and
>> sometimes don't?
>
> It means that Elsevier formally endorses its authors' right to make
> their final, peer-reviewed drafts Open Access immediately upon
> publication (no embargo) by posting them on their institutional
> website (Green Gratis OA) -- "but not in institutional repositories
> with mandates for systematic postings."
>
> It is exactly this sort of clause - usually badly written - that is
> widespread in publishers documents (if you can even find them).  Just
> remember that *we* pay for their lawyers' salaries. The strategy is common
> and exemplified by Ross Mounce's work on licences. Make it complex and make
> it different from every other publisher. Never use a single community-agreed
> approach.
>
> If the publishers wanted to make it simple and professional it could have
> been done a decade ago. It's not hard. A protocol and licence saying what
> could/not be done in Green OA.
>
> What I worry about is that the publishers can change the rules whenever they
> feel like. They are quit capable of saying it's "Green" just as Wiley has
> done for highly paid "Fully Open Access" (not even as green as Stevan is
> asking for).
>
> The point is that these rules are made by people who don't care about
> scholarly publishing. The sooner we admit we are dealing with an industry
> every bit as lovable as bankers the sooner we'll put in place *our* rules
> and not theirs.
>
>
>
>
>
>
> The distinction between an institutional website and an institutional
> repository is bogus.
>
> Of course it is. Unless you are trying to appear helpful and trying not to
> be.
>
>
> The distinction between nonmandatory posting (allowed) and mandatory
> posting (not allowed) is arbitrary nonsense. ("You retain the right to
> post if you wish but not if you must!")
>
>
> Of course it is. It takes a highly paid marketeer to dream that up.
>
>
> The "systematic" criterion is also nonsense. (Systematic posting would
> be the institutional posting of all the articles in the journal; but
> any single institution only contributes a tiny, arbitrary fraction of
> the articles in any journal, just as any single author does; so the
> mandating institution would not be a 3rd-party "free-rider" on the
> journal's content: its researchers would simply be making their own
> articles OA, by posting them on their institutional website, exactly
> as described.)
>
> This "systematic" clause is hence pure FUD, designed to scare or bully
> or confuse institutions into not mandating posting, and authors into
> not complying with their institutional mandates. (There are also
> rumours that in confidential licensing negotiations with institutions,
> Elsevier has been trying to link bigger and better pricing deals to
> the institution's agreeing not to adopt a Green OA mandate.)
>
> That's why I raised it a few days ago. We are dealing with people many of
> whose staff have probably never seen a scholarly pub.
>
>
>
> Along with the majority of publishers today, Elsevier is a Green
> publisher: It has endorsed immediate (unembargoed) institutional Green
> OA posting by its authors ever since 27 May 2004:
> http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/3771.html
>
> But that is no a legally binding contract and that's the problem.
>
>
> Elsevier's public image is so bad today that rescinding its Green
> light to self-archive after almost a decade of mounting demand for OA
> is hardly a very attractive or viable option:
> http://cdn.anonfiles.com/1334923359479.pdf
> http://www.eprints.org/openaccess/self-faq/#32.Poisoned
>
> And double-talk, smoke-screens and FUD are even less attractive:
> http://openaccess.eprints.org/index.php?/archives/822-.html
>
>
> It will be very helpful in helping researchers to provide -- and their
> institutions and funders to mandate -- Open Access if Elsevier drops
> its "you may if you wish but not if you must" clause, which is not
>
> only incoherent, but intimidates authors. (This would also help
> counteract some of the rather bad press Elsevier has been getting
> lately...)
>
>
> I actually suspect that no-one reading this list has any power to change
> Elsevier policy - it's set at boardroom level by people who could be selling
> soap.
>
>
>
>
>
> --
> Peter Murray-Rust
> Reader in Molecular Informatics
> Unilever Centre, Dep. Of Chemistry
> University of Cambridge
> CB2 1EW, UK
> +44-1223-763069
>
> Elsevier Limited. Registered Office: The Boulevard, Langford Lane,
> Kidlington, Oxford, OX5 1GB, United Kingdom, Registration No. 1982084
> (England and Wales).
>
>
> _______________________________________________
> GOAL mailing list
> [log in to unmask]
> http://mailman.ecs.soton.ac.uk/mailman/listinfo/goal
>

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