Re: Comment on a German court decision

From: Stevan Harnad <amsciforum_at_GMAIL.COM>
Date: Tue, 16 Dec 2008 22:49:37 -0500

On Tue, Dec 16, 2008 at 5:55 PM, Klaus Graf <klausgraf --> wrote:

      Comment (in

      (1) Refutation of the Harnad/Suber-myth that journal
      editor's work
      always falls under "give away"

It is not clear what is being referred to here.

The datum is that the *authors* (not the editors/publishers) of all
peer-reviewed research journal articles have always given them away
(to the journal, as well as to all reprint-requesters) without
seeking any fee or royalty in exchange. 

The reason they do this unusual thing is that they publish
peer-reviewed research exclusively so that it should be accessed,
read, used, applied, built-upon, and cited. This is called,
collectively, "research impact." Without exception, these anomalous
give-away authors do not publish their articles in order to seek
revenue from their sale, or as a work for hire; they seek only
research impact. As a consequence, all toll-barriers blocking access
to their give-away work represent impact-barriers for these authors.
And inasmuch as research impact generates higher performance
evaluations, salaries, and research funding for these atypical
authors, impact-barriers represent income-barriers for them too.

This is only true, exception-free, for refereed research journal
articles. That is why these are called (author) "give-away" work, and
that is why this work  -- and not other kinds of work, work that does
not consist of exception-free author giveaways -- is the primary
focus of the Open Access movement (as specified in 2002 in the
Budapest Open Access Initiative), not to be conflated with other
kinds of content (such as books in general) that are not
exception-free author giveaways.

      (2) German court says that peer review resp. editor's
      work makes a
      journal as collection of articles a copyrighted work.

Indeed. And no one is talking about journals as giveaways. The
giveaways are the individual final refereed drafts (postprints ) of
individual authors' own individual articles. 

      (3) Negative consequences for OA: If a repository has
      almost all
      articles of a journal issue legally self-archived
      according German law
      with references to the journal (citation of issue and
      pages) this is a
      violation of the right in the collection according the

And this is exactly why most journals endorse self-archiving in the
author's own institutional repository, which contains only articles
by its own employees, but not in central, 3rd-party repositories
(which could in principle contain the full contents of a journal,
re-published by a free-riding rival publisher).

This has nothing at all to do with the journal reference metadata,
with which an author of course can and does tag his article,
self-archived in his institutional repository.

(The only interesting new aspect of this -- but it seems to be beyond
the conceptual and technical grasp of most copyright lawyers solemnly
giving their professional opinions on copyright in the digital era
these days -- is that in virtue of the OAI-protocol for
interoperability, the metadata of all OAI-compliant repositories are
harvestable into central "virtual" repositories, such as OAIster,
from which all their distributed contents can be jointly searched and
retrieved, google-style, just as if they were actually deposited in a
single global repository -- thereby effectively mooting the
institutional/central distinction.)

And -- most important -- all these (atypical) giveaway authors *want*
it that way. They are not the typical trade author worried (along
with his publisher) about preventing unpaid consumer access to their
books, music, or videos.

      If the editor is the rights holder he must consent

The explicit endorsement, by the publisher, of immediate Open Access
self-archiving, of the postprint, by the author -- already endorsed
by 63% of journals today, plus 32% more for the preptint -- is
welcome (although of course not really necessary, as demonstrated by
17 years of unchallenged author self-archiving [in a *central*
repository!] since 1991 by physicists who were (1) sensible enough to
go ahead and self-archive their preprints and postprints rather than
(2) asking for the opinion of copyright lawyers, publishers, library
IP officers, or overzealous copyright reformers.

But, for the faint-hearted giveaway author today, there is
"Almost-OA" via the email eprint request button, continuing an
academic practice that is even older than that of the self-archiving
physicists, namely, the practice, unchallenged for a half-century, of
individual authors mailing reprints on request (likewise without
first asking the opinion of copyright lawyers, publishers, library IP
officers or overzealous copyright reformers).

      (some extremists
      propagating the useless request-button would argue that
      always have the natural aim to support open access ...)

Indeed I would... ;>)
      but in the
      most cases the publisher has the rights. If and only if
      the publisher
      has an explicite self-archiving policy

as 63% of journals already do, for the postprint, plus 32% more for
the preprint...
      and the publication in the
      (disciplinary) repository is according this policy there
      is no danger.

(in most cases, the publisher's explicit endorsement for immediate OA
is, as repeated many times, for OA self-archiving in the author's own
employing institution's repository, not in a central disciplinary
repository -- which is one of the many reasons why all OA mandates,
by institutions as well as funders, should be convergent, explicitly
stipulating institutional deposit)...

To avoid all "danger" (real or opined), in any case of doubt, deposit
as Closed Access, and rely on the Almost-OA vouchsafed by the Button
until Green OA mandates prevail globally. Once immediate deposit
becomes universal, publisher access-embargoes will all die their
natural and well-deserved deaths under the universal pressure of the
increasingly palpable benefits of OA.

      In all other cases he can block OA to most articles even
      authors have
      OA deposit rights according the German copyright act.

It is no more nor less true in Germany than anywhere else in the
world that mandated immediate-deposit is possible, legal, and will
immediately provide 63% OA, 37% Almost-OA -- and the eventual end of
publisher access embargoes as the mandates become universal.

Stevan Harnad
Received on Wed Dec 17 2008 - 03:50:54 GMT

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