Re: Repositories: Institutional or Central ? emergent properties and the compulsory open society

From: Stevan Harnad <amsciforum_at_GMAIL.COM>
Date: Sun, 8 Feb 2009 18:33:45 -0500

On Sun, Feb 8, 2009 at 2:27 PM, Klaus Graf  wrote:

            Bernard Rentier:
            Universities may legitimately own a
            repository of all the  publications by their
            employees, no matter what their statutes can
            be, they may also impose a mandate and simply
            enforce it by making it conditional for
            further in-house funding, advancement,
            promotions, etc.

      Klaus Graf:
      This isn't true for Germany, see Legal mainstream
      in Germany says that the freedom of research forbids
      mandating on university level.

            Bernard Rentier:
            It is most unfortunate for German researchers
            and for German Institutions (Universities &
            Research Centres). As opposed to researchers
            in other countries, they are missing a superb
            opportunity for efficient worldwide
            dissemination of the knowledge they
            generate... I have a hard time understanding
            what this "legal mainstream" means and what
            is the rationale for it... It sounds more
            like a moral mainstream to me. Indeed, is it
            unclear whether it is a law, a decree, a
            widely followed institutional rule, or a
            dominant frame of mind ?

      Klaus Graf:
      I do not share the opinions of the German legal experts
      but it is a fact that the legal mainstream in Germany
      regards a mandate not compatible with the freedom of
      research (art. 5 Grundgesetz) i.e. against a fundamental
      right of the German constitution. It wouldn't be enough
      to change a law according these opinions - the
      constitution has to be changed (with other words: forget
      it).  I do not think that there is a chance to convince
      the German jurists.

My guess is that what "jurists" and others have been expressing so
far is their free-associations on the ambiguous word "mandate," when
invited to pronounce their opinion on the subject.

Let us substitute "requirement": Is there a German law that German
academics cannot be required to do anything? teach? mark? publish?
provide CVs? 

Of course, as anywhere in the academic world, academics can be
required to submit their sabbatical requests in triplicate on A4
paper if they wish to be considered for a sabbatical, if that is the
institutional procedure. And if they do not, the institution can
gently remind them that without the A4 in triplicate, it is
unfortunately not possible to process their sabbatical request, as
that is the procedure. And if then they do not provide the requisite
triplicate A4, I presume that in Germany, as anywhere else, they will
not be granted a sabbatical, because they will not have requested it,
because they did not follow the requisite procedure.

And I assume that no one would consult a constitutional lawyer on
this question.

By the same token, I think that German Universities can safely
require a CV for a performance review; and they can require an
electronic deposit in the IR too. Nothing about Open Access. Just a
procedure. And no sanctions or punishment for noncompliance -- except
that their publications will not be visible for performance review,
because they will not have been submitted in the requisite format, as
indicated in the instructions for applying.

This too is not a constitutional matter.

The same is true, by the way, for German funding councils, which can
likewise require deposit of article output as part of the fulfillment
conditions for their grants. The fundee need not comply, of course,
but then he need not be given his next funding installment either,
for failure to have fulfilled the requisite conditions for the prior

Likewise not a constitutional matter in Germany, just as it is not
anywhere else either.

This is how the Fraunhofer-Gesellschaft worded their requirement. (It
looks much like the other such deposit mandates that have been
adopted by the rest of the mandating institutions so far.)

      If papers are published in media that... require a
      subscription or other form of payment, copies shall [sic]
      be made available through the organization's own public
      repository, Fraunhofer ePrints ... [If] required by the
      publishing house, an embargo of up to one year may be

Stevan Harnad
Received on Mon Feb 09 2009 - 11:00:38 GMT

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