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On Tue, Jul 28, 2009 at 1:52 PM, JQ Johnson<jqj_at_uoregon.edu> wrote:
> On Jul 27, 2009, at 10:18 AM, Stevan Harnad wrote:
>>> SH: "there is nothing either
>>> defensible or enforceable that a publisher can do or say to prevent a
>>> researcher from personally distributing individual copies of his own
>>> research findings to individual researchers, for research purposes, in
>>> any form he wishes, analog or digital, at any time. That is what researchers
>>> have been doing for many decades, whether or not their right to do so was
>>> formally enshrined in a publisher's "author-re-use" document.
>
> This discussion strikes at the heart of green OA implementation. Among
> other things, it's why we have mandates.
Actually that's not correct. What I was referring to above -- authors
mailing an individual analog reprint or emailing an individual digital
eprint to an individual requester for research purposes -- predates
both OA (Green and Gold) and (Green) OA mandates.
The only connection with Green OA mandates is that email eprint
requests for Closed Access deposits whose metadata are openly
accessible allow users to request and authors to provide individual
one-on-one "Almost OA" during any OA embargo period: That means that
Green OA mandates can require deposit of the final refereed draft
immediately upon acceptance, with no exceptions or opt-outs, no matter
how foolish a copyright transfer agreement the author may have signed.
If a Green OA mandate does not require immediate deposit, then it is
completely at the mercy of publisher OA embargoes: The author deposits
only if and when the publishers stipulates that he may deposit,
because all deposits are OA. If, insteadm immediate deposits are
required in every case, without exception, but where OA is
publisher-embargoed the deposit may be made Closed Access instead of
OA, then the email eprint request button allows the author to provide
"Almost OA" on an individual case by case basis:
http://openaccess.eprints.org/index.php?/archives/274-guid.html
If the mandate instead requires deposit only after the publisher
embargo has elapsed, this means subscriber access only during the
embargo period:
http://openaccess.eprints.org/index.php?/archives/494-guid.html
> I believe Harnad is likely incorrect as a matter of law (at least in the US),
> but ultimately this may end up as a court case that gives us more explicit
> guidance.
If researchers sending individual reprints and eprints to individual
requesters for research purposes has not gone to court for over a half
century, it is difficult to imagine why someone would think it will go
to court now: Publishers suddenly begin suing their authors for
fulfilling reprint requests?
> Note that "research findings" (which are the stuff of patent or academic
> integrity if protected at all) are very different from their expression in
> text, which is what is transferred through the copyright agreement.
We are not talking about research findings, we are talking about
copies of verbatim (published) reports of research findings: sending
them to individual requesters, as scholars and scientists have been
doing for over half a century (since at least the launch of Eugene
Garfield's "Current Contents" and "Request-a-print" cards:
Swales, J. (1988), Language and scientific communication. The case of
the reprint request. Scientometrics 13: 93?101. "This paper reports on
a study of Reprint Requests (RRs). It is estimated that tens of
millions of RRs are mailed each year, most being triggered by Current
Contents..."
> Note also that "what researchers have been doing for many decades" is disputable
> -- arguably what researchers did anteXerox was distribute the 100 or so
> offprints of their article that they got as part of their Faustian bargains.
They could also mail out copies of their revised, accepted final drafts.
And whether or not any of that was "disputable" before xerox, it
certainly wasn't ever contested, neither with the onset of the xerox
era, nor with the onset of the email era.
> Note also that courts would be under strong conflicting pressures if a case
> like this ever actually got heard. On the one hand, Harnad's point is good
> that courts would want to identify ways to find for those sympathetic
> scholarly authors. On another, anyone who has been following the RIAA (or
> remembers Eldred) knows that some of the courts also have tried to find in
> favor of the owners of the copyrighted works and in favor of sanctity of
> contract.
Notice that in all other case but this very special one (refereed
research journal articles) both author and publisher were allied on
the same side of the copyright/access divide: both wanting to block
access to their (joint) product (and revenues) from piracy by third
parties.
In stark contrast, in this one anomalous case -- author give-away
research, written purely for maximal uptake, usage and impact, not at
all for royalty revenue -- the publisher and the author are on
opposite sides of the copyright/access divide, and publishers would
not be suing pirates, but the authors of their own works (and not
"works for hire!").
I would say that the differences from all prior cases are radical
enough here to safely conclude that all prior bets are off, insofar as
citing precedents and analogies are concerned.
And I would say that the de facto uncontested practices of millions of
scholars and scientists annually for decades since well into both the
photocopy and the email eras bear this out.
And although individual reprint/eprint request-fulfillment by authors
is definitely not OA (though it is a harbinger of it), the growing
clamor for OA today is surely making it all the harder for publishers
now suddenly to do an abrupt about-face to contest individual
reprint/eprint request-fulfillment by authors after all this time, and
now, of all times!
> On a third hand, the institutional employers of the researchers
> might well try to assert WmfH or other compulsory license theories that
> trumped the publisher's copyright.
You are thinking here about what institutions (and funders) could do
to force the issue insofar as OA is concerned (and I agree, they do
have an exceedingly strong hand, and could and should use it if it
proves necessary).
But that is not even what we are talking about here: We are just
talking about the longstanding pre-OA practice of individual
reprint/eprint request-fulfillment by authors, for research
purposes...
> On a fourth, there's the public interest
> in "the Progress of Science" and a dearth of good empirical data as to which
> copyright regimes actually do promote that progress.
All worthy and worthwhile, but probably not necessary, as neither
individual reprint/eprint request-fulfillment by authors nor
Immediate-Deposit/Optional-Access (ID/OA) mandates are copyright
matters:
> ...Will it ever go to court? Maybe not. The publishers might win their
> particular case but lose the war by triggering a revolution.
What is the "it" that you are wondering about? Over 90% of journals
are already Green on immediate, unembargoed OA self-archiving in some
form (63% for the refereed postprint, a further 32% for the unrefereed
preprint):
http://romeo.eprints.org/stats.php
So are you wondering whether the non-Green journals will try to sue
their authors? No, they won't. At most, some may try to send them
take-down notices, which their authors will either choose to honor or
ignore.
But that isn't even what we are talking about here: We are talking
about individual reprint/eprint request-fulfillment by authors, for
research purposes: Wouldn't the time for authors to worry about that
have been 50 years ago, rather than now, when they and their children
and grand-children have already been doing it with impunity for
generations?
> JQ Johnson
> Director, Scholarly Communications & Instructional Support
> University of Oregon Libraries
> 1299 University of Oregon T: 1-541-346-1746; F: -3485
> Eugene, OR 97403-1299 email: jqj_at_uoregon.edu
> http://libweb.uoregon.edu office: 115F Knight Library
Received on Tue Jul 28 2009 - 21:48:51 BST