Category Archives: Open Access and Institutional Repositories

Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing

Copyright, Open Access, and Human Rights

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The United Nations Human Rights Council is holding its 28th session this month, and one item on the agenda is discussion about a report from Farida Shaheed, who is a “Special Rapporteur” in the area of “cultural rights.”  Ms. Shaheed is a well-known Pakistani sociologist and human rights activist.  Her report is a remarkable document in many ways, with a lot of things to like for those who are concerned about the overreach of copyright laws.  There are also some points that are troubling, although, on balance, I would love to see this report get attention and action from the U.N.

In some sense, the most remarkable thing about this report is its frank recognition that intellectual property laws are in tension with the fundamental human right of access to science and culture. In only its third paragraph, the report reminds us that since at least 2005, the World Intellectual Property Organization, a U.N. agency, has been mandated (whether effectively or not) to give “renewed attention to alternative policy approaches to promote innovation and creativity without the social costs of privatization.”  In short, the WIPO is charged, whether effectively or not, to find ways to facilitate open access to science and culture.  This charge is made explicit in the recommendations, where the Special Rapporteur directly suggests that “[p]ublic and private universities and public research agencies should adopt policies to promote open access to published research, materials, and data on an open and equitable basis, especially through the adoption of Creative Commons licenses” (para. 113).

When librarians and other open access advocates discuss OA policies with their faculties, perhaps we should recognize that there is a compelling argument to be made that this is not just a “what’s best for academia and for my interests” issue, but a true human rights issue.  Ms. Shaheed’s report makes this case in a concise and compelling way.  And this point also reminds us of why open access that is achieved simply by paying the commercial publishers to release articles is not a solution, because it does not really promote equitable access.  The fees charged are too high for many authors, they are not administered in a transparent way, and, frankly, some of the publishers cannot be trusted to fulfill their end of the bargain.  Barbara Fister discussed some of these problems in more detail in her recent Inside Higher Ed blog post, called “New Predatory Publishing in Old Bottles.”  If we take open access seriously as a step toward a more democratic and equitable culture, we must embrace a wider variety of “flavors” of OA, and not assume that the “usual suspects” can do it for us.

To return to a reading of the Human Rights Council report, there are strong endorsements of the idea that cultural and scientific development depends on restraining the reach of IP protections.  The section on “Copyright policy and cultural participation” is structured around three themes that all begin with “promoting cultural participation through…” and then go on to discuss copyright limitations and exceptions, international cooperation, and open licensing.  Here are some specific recommendations that I found very encouraging:

  • In regard to negotiations that are already underway, the report endorses ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Disabled, or Otherwise Print Disabled.  On the other hand, Ms. Shaheed expresses concern (para 19) about the Trans-Pacific Partnership Agreement that is currently being negotiated in secret, which is the problem that the report focuses on, calling for all such multinational agreements to be discussed in a transparent way (para 92).  Since the TPP is often defended with the claim that it will benefit developing countries, it is fascinating to see it cited as an example of a “democratic deficit in international policy making.”  From a different article, this editorial about the TPP by a U.S. Senator raises the same type of concern, and together they make a strong case against the agreement.
  • In paragraph 22 the report discusses the potential that a pervasive licensing environment can inhibit artistic self-expression and slow cultural development.
  • The report calls for the adoption of international treaties on copyright limitations and exceptions for libraries and education.  Given the current climate in the WIPO, this seems like a long shot, but is valuable in part because it calls attention to that climate, which is dominated by representatives of commercial interests (including, unfortunately, the U.S. Trade Representative).
  • On the issue of copyright limitations and exceptions, the report specifically points to fair use as a tool for allowing a more “comprehensive and adaptable” approach to unlicensed uses (para 73).  The report notes that most countries take the route of adopting exceptions for specific types of use, which provides more certainty, but adds that that approach may be inadequate in the current environment.  In general the report calls for a flexible approach to “uncompensated use of copyrighted works , in particular in contexts of income disparity, non-profit efforts, or under-capitalized artists” (para 106).  It specifically asserts, in this regard, that member states should not take a rigid approach to the so-called “three-step test” for copyright exceptions that is found in the Berne Convention (para 104), which is often used as a weapon by commercial interests against broadly applicable exceptions.
  • One of the recommendations I like best in this report, found in paragraph 107, is that states should enact laws that would prevent copyright limitations and exceptions from being overruled by contractual provisions, and protect such exceptions from excessive technological interference as well.  The UK has recently adopted the contractual part of this idea, stating that certain uses that are allowed by the law cannot be prohibited by contracts.  As I have said before, this is an idea we need to incorporate into U.S. copyright law, and it is good to see the U.N. special rapporteur endorse it so firmly.

There is an overall emphasis in the report that focuses on copyright as an authors’ right, and it is this focus that gives me some ambiguous feelings about the document.  On the one hand, I agree that a focus on authors and supporting authorship will help re-balance our approach to copyright.  Where we have most often gone wrong in this area is when we have allowed copyright discussions to focus on supporting the business models of intermediary organizations, regardless of whether or not those models really helped incentivize authors and creators.  Throughout its history, copyright has been called an authors’ right and treated like a publishers’ privilege.  Re-focusing on authors is part of restoring copyright to its proper function, and makes sense in a document about human rights.  And yet, it is also true that too much stress on author rights can also become unbalanced.  Copyright cannot benefit society unless it weighs the rights of both users and creators, especially since the former often aspire to become the latter.  Authorial control is an important part of the creative incentive, but it can easily go too far.

One troublesome area where this is a real danger is protection for “traditional knowledge and traditional cultural expressions” — the cultural creations of indigenous peoples.  This is an area where there have certainly been abuses, and it is not surprising to find a concern over TK and TCE, as the international community abbreviates them, in a report about IP and human rights.  Unfortunately, protection for these cultural products raises as many problems as it does solutions.  Should there be a public domain for TCEs?  If not, why not?  And who is the legitimate rights holder in traditional knowledge?  The national government?  In an article back in 2011, David Hansen explored some of these issues and found real incompatibility between traditional knowledge protections and the values that animate IP law.

So my final attitude toward this report is mixed, but still strongly positive.  I think it recommends many of the right steps toward restoring copyright and other IP rights to their proper scope and function.  It rightly places the focus on authors and on economic and cultural development.  It reminds us that all high-level copyright conversations should have a human rights perspective.  Where I have concerns, I see a chance for continued conversation.  But at least those conversations would take place with the proper grounding, if the report is taken as seriously as it deserves.

Open Access and Institutional Repositories, Scholarly Publishing

Paying the bills

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Open access is not free.  By saying that up front, I hope to confound some of the more extreme critics of the open access movement, who sometimes pretend that all OA supporters are dreamy-eyed and woolly-headed librarians who imagine that all information “wants” to be free.  So I start from the premise that open access costs money, but I do immediately need to qualify that statement.  By definition, open access does not charge the consumers of information any fee for access.  It is free in that sense, but not in the sense that there are no costs involved in producing the works or making them freely available.

Of course, for most academic work, the majority of the “first copy” costs are already paid for outside the subscription system.  Taxpayer money, research grants or private university funds support the research underlying scholarship, as well as the time of the authors who produce it.  The work of reviewing and improving both articles and books is also borne by these sources, in large part.  Commercial publishers, then, “free ride” on this investment, which is a sign of a failure in the market.

One truth that lies behind much of the open access movement is simply that there are more efficient ways to produce scholarship than the way it has been done in the past.  Digital communications have brought down the cost of other types of content, but publishers continue to raise prices, arguing, improbably, that there are no significant savings in the transition from print to online distribution.

So here is a simple assertion — we must find ways to pay for open access to scholarship, but simply paying traditional commercial publishers to do it for us would just replicate a system whose failure in the online environment is all too obvious.  Gold, or hybrid gold, open access is NOT a solution IF it is expected to simply replace subscription revenue and does not provide an opportunity for a more realistic assessment of costs.

There is a really nice article by Kevin Hawkins from the University of North Texas Libraries about “How We Pay for Publishing” in the latest issue of “Against the Grain.”  I don’t think the issue is openly available, but there is a pre-print of Kevin’s article in the UNT Digital Library here.  The article is a concise overview of “how we got into this mess” and “how might we get out.”  Kevin concisely summarizes the various proposals that would shift library investments from the consumption side of the research process — where we simply buy the products that are sold only to a limited set of buyers/subscribers — to the production side, where library funding helps support the creation of knowledge products that are available to all.  As Hawkins points out, there is a potential free-rider problem here as well, and he writes about how different possible models can address it.  When he turns to the impact of these models on university presses, he envisions a more mission-driven view of those organizations that would recognize that it is unrealistic to expect them to pay for themselves at the end of each fiscal year.  Instead, we should look closely at costs and benefits, recognizing that increased access is a benefit, and support university presses as well as other organizations that are prepared to experiment with new models for more efficient production and broader access.

Costs, of course, are the elephant in the living room whenever improving access is under discussion.  In a recent blog post on open access books and double dipping, Martin Eve of the Open Library of the Humanities questions the claim that a particular publisher must recoup $17,500 to make a single monograph OA.  Martin’s concern is that the publisher in question may be “double-dipping” by demanding the full-cost of the publication as an up-front OA charge and selling print copies as well.  It seems that the OA charge could be reduced by the amount earned through print or e-book sales, just as journal subscription costs ought to come down as author’s select “open choice” options.  The fact that neither reduction is occurring, at least in a wide-spread way, is a sign that we need to ask much harder questions about the actual cost of production as we make this transition to supporting OA on the production side.  The study announced by Ithaka last month should help us get a better handle on the true cost of publishing a monograph.

Those nations that use central funding to support open access publication — and there are a growing number of those — especially need to look at costs to be sure they are not wasting money.  In this guest post on the Digital Science blog, Jan Erik Frantsvag from Norway considers the path that would simply pay article processing charges (APCs) to commercial publishers in order to achieve open access, and lays out some concerns.  Most especially, he explains why the Norwegian Research Council has decided that the funds offered to researchers to fulfill their open access mandate may not be spent on hybrid publications, where only certain articles are made open access after a fee is paid, while a subscription fee is still charged for access to the entire journal.  Frantsvag cites three concerns that caused the Norwegian government to reject this hybrid model.  First, because it double-dips, as described above.  Second, because hybrid journal APCs are higher than those for other OA publications, raising precisely this issue of cost that we have been discussing.  As more and more government funds are used to pay APCs, it seems likely that we will see more probing questions about cost being asked.  Indeed, if U.S. universities are going to develop campus-based funds to support article process charges, we ought to be asking the same questions, and using caps on our funds to encourage more reasonable APCs.  The third reason Frantsvag cites is simply that money for open access should support innovation and experimentation, not simply go to keeping the old business model afloat.

In each of these examples we see that efforts to encourage open access and find new models for supporting research must necessarily look at how much the production of knowledge products — monographs, journal articles, digital visualizations, etc. — actually costs.  In the past these costs have been obscure to universities, hidden in the steady upward spiral of subscription expenses.  But now we are seeing signs that the academic community is beginning to do what it probably should have done long ago — look closely at the actual costs and begin to evaluate the money we are willing to invest in each form of scholarly dissemination.

Libraries, Open Access and Institutional Repositories, Scholarly Publishing

Who should we trust?

A recent discussion on an e-mail list, about university open access policies, raised the issue of trust.  The participants correctly noted how important it is that there be some level of trust between faculty, administrators and the library (which is usually charged with managing an open access repository once a policy is in place) in order for an open access policy to be adopted and successfully implemented.  Inevitably, the comments brought out the irony that faculty authors often seem very suspicious about administrator motives when debating an OA policy — fearing that someone is trying to “steal their stuff” — yet are perfectly willing to give that “stuff,” in its entirety and for no remuneration, to commercial publishers.  And they do this even though it is obvious that commercial publishers do not share the fundamental values of academia about research and access.

When one looks a little deeper, it is easy to see, I think, that academic authors do not really trust the commercial publishers either; we hear lots of wry comments about how absurd the current system is, followed by a shoulder-shrug expressing resignation.  It is absurd, but it is what we have got.  “Trust” is probably the wrong word for what authors feel as they give away their work.

Perhaps it really is just resignation in the face of how things have been done for hundreds of years.  There was a fine column published recently in the Educause review that encapsulates this scholarly stagnation with a story about a Buddhist monastery where the practice of tying up the monastery’s cat, begun because it disrupted the abbot’s lessons to novices, continued for centuries, through many successive abbots and cats, until it came to be invested with a false sense of significance.  Mark Edington makes the case that we have become unreasonably wedded to a system that once had considerable utility for a set of circumstances that no longer exist, and are reluctant to embrace the changes needed for our new environment.  There certainly is an element of “tying up the cat” in our continued dependence on commercial publishers and our willingness to pay them to do things that, in many cases, we can now do better and more economically ourselves.  It is simply easier to do what we have always done, and to let the dissemination of scholarship remain in the hands of those who have done it for us for 300 years.

It is not that we exactly trust commercial publishers, nor do we exactly distrust them. We may recognize that the values and goals of the commercial publishing business are different from, and even in conflict with, the best interests of scholarly authors and of scholarship itself.  Perfectly nice people, working to advance their own interests as best they can, come in to conflict as the conditions for research and teaching change. And a real ambivalence is created because of how interwoven the parts of the academic enterprise are.  More than just inertia is a work; important aspects of the academic enterprise remain interlocked with traditional forms of publication.

Most obviously, the rewards system in higher education, which by definition has worked well for many of our most influential faculty, is highly entwined with traditional journal and monograph publishing. In the digital age, when we can actually learn so much more relevant information about the uses made of an individual scholarly article, it may be absurd to continue to look at impact factor and the “brand name” of the journal as evaluative measures, but the systems we have built around those factors are well entrenched.  Change seems inevitable, but it will be slow.  One of my major concerns is the cost of this snails’ pace, and the danger that “the usual suspects” will succeed in co-opting the new opportunities and convincing us to pay them for open access and alt-metrics, when we should look for ways to save money and preserve more local control over these new, digital opportunities.  An example of this danger can be found in the “Open Access Roundtable” sponsored by the Copyright Clearance Center that warned about the complexity of article processing charges.  The CCC, of course, sees itself as a solution to that problem, while the role of universities is simply to pay others, through them, for the benefits of open access.

Late last year Jason Schmitt, a professor at a small liberal arts college, posted a column in the HuffPost called “Academic Journals: The Most Profitable Obsolete Technology in History.”  He makes a good point.  It seems odd that academia, which should be in the forefront of leading managed change, should be propping up a technology that has outlived its usefulness.  We would laugh at people who continued to buy buggy whips well into the automobile era, yet we, as academics and librarians, are in danger of becoming those very laughing-stocks. Schmitt focuses on ideas for change laid out by Sam Gershman and John Bohannan and stresses the societal obligation we have to make the knowledge created in our colleges and universities more accessible.

Of course, trust is a key element in moving toward the open access future that Schmitt, like so many others, envisions.  The systems we are moving toward will not be simple; it will involve multiple and diverse business models, and accommodation for lots of different needs.  We will need to decide what parts of the scholarly communication system we can take over on our own campuses, where we should focus collective funding, and what elements might still be most reasonably “outsourced” to commercial firms.  These decisions will be difficult, and different on each campus.  At each stage we will need to decide who we trust; who are the right partners for this part of the journey.

The key to those trusted relationships, I think, is common values.  As we move toward a more open future for scholarly communication, we need to focus on what are the best interests of scholarship and of individual scholars.  The best way to overcome distrust between faculty and administrators, for example, is to ground the conversation on shared or complementary needs and goals — faculty want maximum attention and impact for their work, and administrators want to build and protect the reputation of the institution; open access, implemented thoughtfully, can bring those goals into alignment. Libraries, which are traditionally highly-trusted entities on campus, must keep their focus where, I hope, it has always been, on making teaching and research easier and better.  In all of our conversation about changing the system of scholarly communications, we should keep that goal as our foundation.  Even more importantly, we need to “walk the talk.”  In our decisions about how we spend our money, especially, we should be guide by, and be seen to be guided by, those best interests of our scholars and our institutions. I firmly believe that those interests will lead us, by the shortest reasonable route, to our open future.

Libraries, Open Access and Institutional Repositories, Scholarly Publishing

Cancelling Wiley?

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Because they were spaced almost a full year apart, I really did not connect the dots when two Canadian universities announced that they were cancelling their “Big Deals” with John Wiley & Sons publisher.  The Times Higher Education reported on the decision at the University of Montreal back in January 2014, while the announcement made by Brock University came only a few weeks ago.  I would not have considered this a trend worth commenting on had it not been for conversations I had last week at the Fall CNI Membership meeting.  During that meeting, two different deans of large university libraries told me, unbidden and in separate conversations, they they were also considering ending their deal with Wiley.  I was struck by the coincidence, which caused me to remember these two announcements from Canada and to begin to ponder the situation.

Two different questions occurred to me when I thought about these four significant cancellations or potential cancellations, all directed at a single publisher.  First, why was Wiley the focus of this dissatisfaction?  Second, what is the next step?

As for what the complaints are about Wiley, the answer is pretty much what it always is — money.  The THE article and the Brock University report both tell us that exchange rates have made the annual “higher than the inflation rate” price increases for these packages even harder to bear than usual.  They also point to another problem.  Pricing is based on the large number of titles included in these package deals, but many of those titles are not very useful.  The Brock post notes that the Wiley package has a significantly higher cost per use than does their Elsevier package, which presumably reflects the fact that many of the titles the University is paying for in the package simply do not get used.  The same reality is probably behind the fact noted by THE that Montreal would subscribe to less than 25% of the titles that had been included in the package it was cancelling.  It would be interesting to find out, a year on, how much those other titles have been missed.

In my conversations with the two library deans, much the same thing was said about Wiley — demanding a large price increase, being inflexible in negotiation, and selling “a lot of junk that I don’t need” in the package.  Libraries are beginning to discover that they do not need to put up with those tactics.  Publishers often tell us that they are publishing so many more articles, which justifies their price increases, and they tell us how selective their flagship journals are.  But when we look at these big deals, it is clear that selectivity is not an across-the-board approach; many articles that are not very useful just slide down the hierarchy to get published in journals whose main purpose is to pad out a “big” deal.

To me the more important question is “what now?”  Unfortunately, many times when a library makes this kind of decision there is actually little money saved, since the funds simply go into re-subscribing to a smaller, selected list of titles from the same publisher.  But presumably some of these cancellations result in dollars saved.  And when they don’t, I propose that libraries ought to reexamine their approach.  When you have cancelled a dross-laden package, think twice before reinvesting all of that money in as many individual subscriptions from the same publisher as possible; make a careful decision about where the division between useful titles and unnecessary ones really lies.  Because here is the thing — money that can be saved and reinvested in open access projects will give us a higher return on our investment, because those projects will provide greater access.

It seems clear that, over time, libraries will need to move more and more of their spending away from the consumption side of scholarly production and do much more to support the creation and dissemination of knowledge directly.  Commercial publishers hope to capture those dollars as well, but one of the real benefits of supporting open access can and should be more freedom from businesses addicted to 30% profits.  I would like to challenge libraries to consider, when they have to cancel, using the money to support non-profit or lower profit open access projects.  Work with a society to provide subvention for a scholarly journal to become OA.  Work with your university press to support OA monographs.  Finally, even if not compelled by immediate budget realities, think about making some strategic cancellations in order to take these kinds of steps.  We know that open access is our future, and it is vital that we take control of that future before others take it from us.

I don’t know if Wiley is the worst offender amongst the large commercial publishers, or whether there is a real trend toward cancelling Wiley packages.  But I know the future of scholarship lies elsewhere than with these large legacy corporations.  The process of weaning ourselves from them will be slow and drawn-out.  But especially when the cancellations are going to happen anyway, we should have the idea of using the funds to advance the transition to open access foremost in our minds.

For a similar, but likely better informed, perspective on the idea of cutting subscriptions to support open access, please read Cameron Neylon’s post on “Letting it go — Cancelling subscriptions, funding transitions,”which ties the idea in his title to the discussion going on in the Netherlands about Elsevier’s big deal.

Digital Rights Management, Open Access and Institutional Repositories, Scholarly Publishing

Public access and protectionism

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By now many folks have commented on the announcement from Nature Publishing Group early this week about public access to all of its content and most have sussed out the fairly obvious fact that this is not open access, in spite of the rah-rah headline in the Chronicle of Higher Education, nor even public access as it is defined by many national or funder mandates.  Just to review quickly the major points about why this announcement actually gives the scholarly community so much less than is implied by either of those terms, consider these limitations:

  1. A putative reader can only get to an article if they are sent a link by a subscriber, or the link is present in a news article written by one of the 100 news organizations that NPG has chosen to “honor.”
  2. Articles can only be read inside NPG’s proprietary reader
  3. No printing or downloading is possible, so a non-subscriber hoping to use one of these articles to further her own research better have a darn good memory!
  4. No machine processing will be possible; no text or data mining.

In short, all of the inconveniences of print journals are preserved; what NPG is facilitating here is essentially a replica of loaning a colleague your copy of the printed magazine.  Or, at best, the old-fashioned system whereby authors were given paper “off-prints” to send to colleagues.  Although, honestly, off-prints had more utility for furthering research than this “now you see it, now you don’t” system has.

If this is not open or public access, what is it?  I like the term “beggar access,” which Ross Mounce applied to NPG’s scheme in a recent blog post, since it makes clear that any potential reader must ask for and receive the link from a subscriber.  Some suggest that this is a small step forward, but I am not convinced.  There is nothing public or open about this “ask a subscriber” model; all it really does is prevent scholars from downloading PDFs from their subscription access to NPG journals and emailing them to colleagues who lack a subscription.  In short, it looks like another stage in the ongoing comedy of fear and incomprehension about the way digital scholarship works on the part of a major publisher.  But Mounce’s post suggests that the move is more than that; he points out ways in which it may be designed to prop up digital business that Nature and its parent Macmillan have invested in — specifically ReadCube and AltMetric.com.  The byzantine scheme announced by Nature will drive readers to ReadCube and will generate data for AltMetrics.com, helping ReadCube compete with, for example, Elsevier and their proprietary reading and sharing tool, Mendeley.

That is, this looks like another move in the efforts by the large commercial publishers to buy up and co-opt the potential of open access. On their lips, open access does not mean greater potential for research and the advancement of science; it means a new market to exploit.  If administrators, researchers and librarians allow that to happen, they will have only themselves to blame.

My colleague Haley Walton, who recently attended OpenCon 2014, told me about a presentation made by Audrey Watters that included the idea of “openwashing,” which Watters defines like this:

Openwashing: n., having an appearance of open-source and open-licensing for marketing purposes, while continuing proprietary practices.

This is exactly what is happening in this announcement from NPG; old business models and awkward exploitation of new markets are being dressed up and presented as a commitment to access to scholarship, but the ruse is pretty transparent.  It may quack like a duck, or be quacked about, but this plan is really a turkey.

If NPG really was committed to better access for scientific research, there is a simple step they could take — put an end to the six-month embargo they impose on author self-archiving.  Much of their competition allows immediate self-archiving of an author’s final manuscript version of articles, but Nature does not.  Instead, they require a six-month embargo on such distribution.  So this new move does only very little to ameliorate the situation; the public still cannot see Nature-published research until it is old news.

Speaking of news, at Duke we have a relationship between the office of Scholarly Communications and that of News & Communications whereby we are notified of upcoming articles about research done at Duke.  In many cases, we are able to work with authors to get a version of the article in question into our repository and provide an open link that can be included in the article when it is released, or added shortly after release.  Our researchers find that putting such links in news stories leads to much better coverage of their discoveries and increased impact on their disciplines.  We always do this in accordance with the specific journal policies — we do not want to place our authors in a difficult position — which means that we cannot include Nature-published articles in this program.  To be frank, articles published in Nature remain highly valued by promotion and tenure committees, but relatively obscure in terms of their ability to advance science.  NPG seems to understand this problem, which is why they have selected a small number of news outlets to be allowed to use these tightly-restricted, read-only links.  They want to avoid increasing irrelevance, but they cannot quite bring themselves to take the necessary risk.  The best way they could advance science would be to eliminate the six-month embargo.

It is interesting to consider what might happen if Nature embraced a more comprehensive opportunity to learn what researchers think about open access by tying their “get a link from a subscriber” offer with an announcement that they were lifting the six-month embargo on self-archiving.  That would demonstrate a real commitment to better access for science, and it would set up a nice experiment.  Is the “version of record” really as important to researchers as some claim?  Important enough to tolerate the straightjacket created by NPG’s proprietary links?  Or will researchers and authors prefer self-archiving, even though an earlier version of the article must be used? This is not an obvious choice, and NPG might actually win its point, if it were willing to try; they might discover that their scheme is more attractive to authors than self-archiving.  NPG would have little to lose if they did this, and they would gain much more credit for facilitating real openness.  But the only way to know what the real preference among academic authors is would be for Nature Publishing to drop its embargo requirement and let authors choose.  When they make that announcement, I will believe that their commitment to finding new ways to promote research and learning is real.

Authors' Rights, Open Access and Institutional Repositories, Scholarly Publishing

Attention, intention and value

How should we understand the value of academic publications?  That was the question addressed at the ALA Annual Conference last month during the SPARC/ACRL Forum.  The forum is the highlight of each ALA conference for me because it always features a timely topic and really smart speakers; this year was no exception.

One useful part of this conversation was a distinction drawn between different types of value that can be assigned to academic publications.  There is, for example, the value of risk capital, where a publication is valued because someone has been willing to invest a significant amount of money, or time, in its production.  Seeing the value of academic publications in this light really depends on clinging to the scarcity model that was a technological necessity during the age of print, but which is increasingly irrelevant.  Nevertheless, some of the irrational opposition we see these days towards open access publications seems to be based on a myopic approach that can only recognize this risk value; because online publication can be done more inexpensively, at both production and consumption, and therefore does not involve the risk of a large capital investment, it cannot be as good.  Because the economic barrier to entry has been lowered, there is a kind of “they’ll let anyone in here” elitism in this reaction.

Another kind of value that was discussed is the cultural value that is supposedly infused into publications by peer-review.  In essence, peer-review is used as a way to create a different, artificial type of scarcity — amongst all the material available in the digital age, peer-review separates and distinguishes some as having a higher cultural value.

Of course, there is another way to approach this kind of winnowing valuable material from the booming, buzzing confusion; one could look at how specific scholarship has been received by readers.  That is, one could look at the value created by attention.  We are especially familiar with attention value in the age of digital consumerism because we pay attention to Amazon sales figures, we seek recommendations through “purchased together” notes, and we look at consumer reviews before booking a hotel, or a cruise, or a restaurant.  Some will argue that these parallels show that we cannot trust attention value; it is only good for inconsequential decisions, the argument goes. But figuring out how to use attention as a means to make sound evaluations of scholarship — better evaluations than we are currently relying on — is the focus of the movement we call “alt-metrics.”

Before we discuss attention value in more detail, however, we need to acknowledge another unfortunate reminder that the cultural value created by peer-review may be even more suspect and unreliable. Last week we saw a troubling incident that provokes fundamental doubts about peer-review and how we value scholarly publications when Sage Publishing announced the retraction of sixty articles due to a “peer-review ring.”  Apparently a named author used fake e-mail identities, and maybe some cronies, in order to review his own articles and to cite them, thus creating an artificial and false sense of the value of these articles.  Sage has not made public the details, so it is hard to know exactly what happened, but as this article points out, the academic world needs to know — deserves to know — how this happened.  The fundamental problem that this incident raises is the suggestion that an author was able to select his own peer-reviewers and to direct the peer-review requests to e-mails he himself had created, so that the reviewers were all straw men.  Although all the articles were from one journal, the real problem here is that the system for peer-review apparently simply is not what we have been told it is, and does not, in fact, justify the value we are encouraged to place on it.

Sage journals are not inexpensive.  In fact, the recent study of “big deal” journal pricing by Theodore Bergstrom and colleagues (subscription required), notes that Sage journal prices, when calculated per citation (an effort to get at value instead of just looking at price), are ten times higher than those for journals produced by non-profits, and substantially higher even than Elsevier prices.  A colleague recently referred to Sage journals in my hearing as “insanely expensive.” So it is a legitimate question to ask if we are getting value for all that money.  One way high journal prices are often justified, now that printing and shipping costs are mostly off the table, is based on the expertise required at publishing houses to manage the peer-review system.  But this scandal at the Journal of Vibration and Control raises the real possibility that Sage actually uses a kind of DIY system for peer-review that is easily gamed and involves little intervention from the publisher.  How else could this have happened?  So we are clearly justified is thinking that the value peer-review creates for consumers and readers is suspect, and that attention value is quite likely to be a better measure.

Attention can be measured in many ways.  The traditional impact factor is one attempt to analyze attention, although it only looks at the journal level, measures only a very narrow type of attention, and tells us nothing about specific articles.  Other kinds of metrics, those we call “alt-metrics” but ought to simply call metrics, are able to give us a more granular, and hence more accurate, way to evaluate the value of academic articles.  Of course, the traditional publication system inhibits the use of these metrics, keeping many statistics proprietary and preventing cross-platform measurements.  Given the Sage scandal, it is easy to see why such publishers might be afraid of article-level measures of attention.  The simple fact is that the ability to evaluate the quality of academic publications in a trustworthy and meaningful way depends on open access, and it relies on various forms of metrics — views, downloads, citations, etc. — that assess attention.

But the most important message, in my opinion, that came out of the SPARC/ACRL forum is that in an open access environment we can do better than just measuring attention.  Attention measures are far better than what we have had in the past and what we are still offered by toll publishers. But in an open environment we can strive to measure intention as well as attention.  That is, we can look at why an article is getting attention and how it is being used.  We can potentially distinguish productive uses and substantive evaluations from negative or empty comments.  The goal, in an open access environment, is open and continuous review that comes from both colleagues and peers.  This was an exciting prospect when it was raised by Kristen Ratan of PLoS during the forum, where she suggested that we should develop metrics similar to the author-to-author comments possible on PubMed Commons that can map how users think about the scholarly works they encounter.  But, after the Sage Publishing debacle last week, it is easier to see that efforts to move towards an environment where such open and continuous review is possible are not just desirable, they are vital and very urgent.

Authors' Rights, Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing, Uncategorized

Publishing ironies

Would Karl Marx have waived his copyright on principle?  I don’t know for sure, but I rather doubt it.  Marx was not entirely in sympathy with Proudhon’s famous assertion that “property is theft,” and in any case probably expected to make at least part of his living off from his intellectual property.  Nevertheless, there is something rather odd about a left-wing press asserting its own copyright to prevent the digital distribution of the Collected Works of Marx and Engels.  Marx’s interests are not being protected, of course; his works have been in the public domain for many years.  But Lawrence & Wishart Publishing wants to protect its own income from this property by asserting a copyright in new material that is contained in the volumes, including notes, introductions and original translations, and it has demanded that the Marxists Internet Archive remove digital copies of the works.

It is interesting to consider who is being hurt by the distribution and by the take down demand.  The distribution, as I say, does no harm to Marx or his descendants, since the copyright has already expired.  The party harmed, of course, is the publisher, which can continue to collect revenue from public domain works, and is entitled to enforce exclusivity if, as in this case, there is new material that is currently protected by copyright.

So we have the irony of Marxist literature being protected by that most capitalist of business structures, a monopoly, and a left-wing press asserting that monopoly to limit dissemination of Marxist ideas.

Does the take down demand harm anyone?  Much of this literature is available in other forms on the Internet, owing to its public domain status.  Potential readers will presumably be harmed, to a degree, because English versions of some more obscure works by Marx and Engels will become unavailable if the translations in the Collected Works were the first of their kind.  But I can’t help thinking that the folks who are really harmed by this decision are the contemporary scholars who contributed to the volumes published by Lawrence and Wishart.  Perhaps they thought that by contributing to a collected works project they had the opportunity to offer a definitive interpretation of some particular essay or letter.  Perhaps they hoped to make an impact on their chosen field of study.  But those opportunities are greatly reduced now.  Potential readers will find the works they are looking for in other editions that remain available in the Archive, or they will not find them at all.  They will look to other scholars to help them understand those works, scholars whose writings are more accessible.

While I cannot dispute the right of Lawrence and Wishart to demand exclusivity, it is a clear reminder about how poorly the traditional system of publishing, based on state-enforced exclusivity, serves scholars in an age when there are so many opportunities in the digital environment to reach a much larger audience.  I suspect that the price of the Collected Works set is high, and the publisher is quite obscure (a colleague here just shrugged when I mentioned the name), so its distribution will be quite limited.  It is a sad illustration of how traditional publishing that relies on subscriptions for digital material is inextricably mired in the print model, trying desperately to reproduce the scarcity of print resources in defiance of the abundance possible in the digital environment.  The losers in that effort are the scholars whose ability to impact their field is deliberately reduced by this effort — beyond their control — to preserve exclusivity and scarcity.

“Beyond their control” leads directly to the other irony from the publishing industry that I want to share in this post.  A colleague recently sent me a PDF of the preliminary program for the conference being held in Boston next month of the Society for Scholarly Publishing.  It was the description of the very first seminar that caught both her eye and mine:

Seminar 1: Open Access Mandates and Open Access “Mandates:” How Much Control Should Scholars Have over Their Work?Many universities now mandate that faculty authors deposit their work in Open Access university repositories.  Others are developing this expectation, but not yet mandating participation.  This seminar will review various mandatory and non-mandatory OA deposit policies, the implementation of different policies, and the responses of faculty members to them.  Panelists will discuss the degree to which academic institutions ought to determine the disposition of publications originating on their campus.

It is hard to believe that the SSP could print this session description with a straight face.  Surely they know that the law deliberately gives scholars a great deal of control over their work, in the form of copyright.  Scholars exercise that control in a variety of ways, including when they vote to adopt an open access policy, as many have done.  So where is the threat to scholar’s control over their own works?  Perhaps at the point where they are required to relinquish their copyright as a condition of publication.  If the SSP were really concerned about scholars having control over their own writings, the panel for this session would be discussing how to modify copyright transfer policies so that scholarly publishers would stop demanding that faculty authors give up all of their rights.

The SSP has carefully written the session description to make it sound like open access policies are imposed on faculty against their will.  But every policy I am aware of was adopted by the faculty themselves, usually after extensive discussions.  And the majority of policies have liberal waiver provisions, so that faculty who do not wish to grant a license for open access do not have to do so.  On the other hand, publishers almost never provide a similar way for authors to opt out of mandatory copyright transfer, other than paying a significant fee for an author-pays OA option, which offers authors a chance to buy what they already own.  Perhaps this concern about authorial control could be channeled into a discussion about the new models of scholarly publishing that are developing that do not require copyright transfer and that seek alternate ways to finance the improved access so many university faculties are indicating they want.

There is a lot to talk about here, especially in terms of authorial control.  Consulting the authors whose material is published in the Collected Works of Marx and Engels might have engendered discussion of a solution to the issue about the Marxists Archive other than simply demanding removal.  Maybe those authors should have resisted the demand to transfer copyright wholesale to Lawrence and Wishart in the first place. But publishers continue to think in terms of total control over the works they publish; that is the real threat to authors and that is the problem that the SSP ought to be addressing.

Authors' Rights, Open Access and Institutional Repositories, Scholarly Publishing

Attacking academic values

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A new thing started happening here at Duke this week; we began getting inquiries from some faculty authors about how to obtain a formal waiver of our faculty open access policy.  We have had that policy in place for over three years, but for the first time a single publisher — the Nature Publishing Group — is telling all authors at Duke that they must obtain a waiver of the policy before their accepted articles can be published.  It is not clear why NPG suddenly requires these waivers after publishing many articles in the past three years by Duke authors, while the policy was in force and without waivers.

Indeed, the waivers are essentially meaningless because of the way Duke has implemented its open access policy.  When the policy was adopted unanimously by our Academic Council in March 2010, the statement in favor of openness was pretty clear, but so was the instruction that implementing the policy not become a burden to our faculty authors.  So throughout the ensuing years we have tried to ensure that all archiving of published work in our repository be done in compliance with any publisher policies to which our authors have agreed.  NPG allows authors to archive final submitted manuscripts after a six month delay, so that is what we would do, whether or not the author sought a policy waiver.  But suddenly that is not good enough; Nature wants a formal waiver even though it will have no practical effect.  The demand seems to be an effort to punish authors at institutions that adopt open access policies.

There are some comical aspects to this sudden requirement for waivers.  As I said, it seems to have taken NPG three years to figure out that Duke has an open access policy, even though we have made no secret of the fact.  Even more oddly, the e-mail that our faculty authors are getting from NPG lists nine schools from whose faculty such waivers are being required; apparently it was only four schools until recently.  But there are over thirty institutions with faculty-adopted OA policies in the U.S. alone.  Some of the largest schools and the oldest policies have not yet showed up on Nature’s radar; one wonders how they can be so unaware of the scholarly landscape on which their business depends.  NPG looks silly and poorly-informed, frankly, in the eyes of the academic authors I have spoken to.

In addition to making NPG look foolish, this belated demand for waivers has had positive effects for open access on our campus.  For one thing, it simply reminds our authors about the policy and gives us a chance to talk to them about it.  We explain why Nature’s demand is irrelevant and grant the waivers as a matter of course, while reminding each author that they can still voluntarily archive their work in compliance with the rights they have retained (which is the same situation as without the waiver).  I suspect that this move by NPG will actually increase the self-archiving of Nature articles in our repository.

Another effect of these new demands is that open access and the unreasonable demands of some commercial publishers has gotten back on the radar of our senior administrators.  Our policy allows the Provost to designate someone to grant waivers, and, in figuring our who that would be, we had a robust conversation that focused on how this demand is an attack on the right of our faculty to determine academic policy.

This last point is why I have moved, in the past few days, from laughing at the bumbling way NPG seems to be fighting its battle against OA policies to a sense of real outrage.  This effort to punish faculty who have voted for an internal and perfectly legal open access policy is nothing less than an attack on one of the core principles of academic freedom, faculty governance.  NPG thinks it has the right to tell faculties what policies are good for them and which are not, and to punish those who disagree.

As my sense of outrage grew, I began to explore the NPG website.  Initially I was looking to see if authors were told about the waiver requirement upfront.  As far as I can tell, they are not, in spite of rhetoric about transparency in the “information for authors” page.  The need for a waiver is not even mentioned on the  checklist that is supposed to guide authors through the publication process.  It seems that this requirement is communicated to authors only after their papers have been accepted.  I suspect that NPG is ashamed of their stratagem, and in my opinion they should be.  But as I looked at NPG policies, and especially its License to Publish, my concern for our authors grew much deeper.

Two concerns make me think that authors need to be carefully warned before they publish in an NPG journal.

First, because this contract is a license and tells authors that they retain copyright, it may give authors a false sense that they are keeping something valuable.  But a careful reading shows that the retention of copyright under this license is essentially a sham.  The license is exclusive and irrevocable, and it encompasses all of the rights granted under copyright.  It lasts for as long as copyright itself last.  In short, authors are left with nothing at all, except the limited set of rights that are granted back to authors by the agreement.  This is not much different than publishing with other journals that admit up front that they require a transfer of copyright; my concern is that this one is dressed up as a license, so authors may not realize that they are being just as completely shorn of their rights as they are by other publishers.

My bigger concern, however, is found in clause 7 of the NPG “license,” which reads in its entirety:

The Author(s) hereby waive or agree not to assert (where such waiver is not
possible at law) any and all moral rights they may now or in the future hold
in connection with the Contribution and the Supplementary Information.
I don’t think most publishers require authors to waive moral rights (I have actually added them in to a publication contract), and insisting on doing so is a serious threat to core academic values.  Moral rights are recognized by most countries of the world (including the UK, where NPG has its corporate offices) and usually include two basic rights — the right of attribution and the right to preserve the integrity of one’s work.  The United States is something of an outlier in that we do not have a formal recognition of moral rights in our copyright law, although we always assert that these values are protected by other laws.  But my point here is to wonder why NPG requires all of its authors to waive their right of attribution.  This is not an incidental matter; the clause is carefully structured to attempt to get authors even from the countries that do not allow the waiver of moral rights — they are considered that important —  still to promise not to assert those rights (whether or not that would be enforceable in those countries).  Nature actively does not want its authors to be able to insist that their names always be associated with their work.  Why?  Does NPG imagine reusing articles it is given to publish in other ways, without providing proper attribution?  If this seems like a remote possibility, it remains the only conceivable reason that NPG would insert this bizarre clause.
So this week I discovered two ways in which Nature Publishing Group is actively attacking core academic values.  First, by trying to interfere in academic policy decisions made through independent faculty governance processes.  Second, by trying to exempt themselves from the core principle of scholarship that scholars should get credit for the work they do.  Authors publish with Nature because they believe that the brand enhances their reputation.  But by giving NPG the ability to disassociate their work from their name, that value of the Nature brand is lost.  Why would any author agree to that?
Starting with those silly demands for a waiver of the open access policy, I discovered a much deeper threat being posed to our faculty authors.  With each waiver request I now have to have a conversation with all authors who publish with NPG.  I will use those conversations as an opportunity to encourage self-archiving.  But I now know that I also must warn authors that by signing the NPG license they are giving up the most precious thing they have — the right to get credit for their work.  I hope many of our authors will reconsider signing that license unaltered.  Since NPG has singled us out, I will now be singling out NPG for its especially egregious attack on fundamental academic values.

 

Open Access and Institutional Repositories, Scholarly Publishing, Technologies, Uncategorized

Walking the talk

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All of the presentations at the SPARC Open Access meeting this week were excellent.  But there was one that was really special; an early career researcher named Erin McKiernan who brought everyone in the room to their feet to applaud her commitment to open access.  We are sometimes told that only established scholars who enjoy the security of tenure can “afford” to embrace more open ways to disseminate their work.  But Dr. McKiernan explained to us both the “why” and the “how” of a deep commitment to OA on the part of a younger scholar who is not willing to embrace traditional, toll-access publishing or to surrender her goals of advancing scholarship and having an academic career.

Erin McKiernan is a Ph.D from the University of Arizona who is now working as a scientist and teacher in Latin America.  Her unique experience informs her perspective on why young scholars should embrace open access.  Dr. McKiernan is a researcher in medical science at the National Institute of Public Health in Mexico and teaches (or has taught) at a couple of institutions in Latin America.  For her, the issue is that open access is fundamental to her ability to do her job; she told us that the research library available to her and her colleagues has subscriptions to only 139 journals, far fewer that most U.S. researchers expect to be able to consult.  Twenty-two of that number are only available in print format, because electronic access is too expensive.  This group includes key titles like Nature and Cell.  A number of other titles that U.S. researchers take for granted as core to their work — she mentioned Nature Medicine and PNAS — are entirely unavailable because of cost.  So in an age when digital communications ought to, at the very least, facilitate access to information needed to improve health and treat patients, the cost of these journals is, in Dr. McKiernan’s words, “impeding my colleagues’ ability to save lives.”  She made clear that some of these journals are so expensive that the choice is often between a couple of added subscriptions or the salary of a researcher.

This situation ought to be intolerable, and for Dr. McKiernan it is.  She outlined for us a personal pledge that ought to sound quite familiar.  First, she will not write, edit or review for a closed-access journal. Second, she will blog about her scientific research and post preprints of her articles so that her work is both transparent and accessible.  Finally, she told us that if a colleague chose to publish a paper on which she was a joint author in a closed-access journal, she would remove her name from that work.  This is a comprehensive and passionately-felt commitment to do science in the open and to make it accessible to everyone who could benefit from it — clinicians, patients and the general public as well as other scholars.

Listening to Dr. McKiernan, I was reminded of a former colleague who liked to say that he “would rather do my job than keep my job.”  But, realistically, Dr. McKiernan wants to have a career as a teacher and research scientist.  So she directly addressed the concerns we often hear that this kind of commitment to open access is a threat to promotion and tenure in the world of academia.  We know, of course, that some parts of this assertion are based on false impressions and bad information, such as the claim that open access journals are not peer-reviewed or that such peer-review is necessarily less rigorous than in traditional subscription journals.  This is patently false and really makes little sense — why should good peer-review be tied to a particular business model?  Dr. McKiernan pointed out that peer-review is a problem, but not just for open access journals.  We have all seen the stories about growing retraction rates and gibberish articles.  But these negative perceptions about OA persist, and Dr. McKiernan offered concrete suggestions for early-career researchers who want to work in the open and also get appropriate credit for their work.  Her list of ideas was as follows (with some annotations that I have added):

1. Make a list of open access publication options in your particular field.  Chances are you will be surprised by the range of possibilities.

2.  Discuss access issues with your collaborators up front, before the research is done and the articles written.

3. Write funds for article processing charges for Gold open access journals into all of your grant applications.

4. Document your altmetrics.

5. Blog about your science, and in language that is comprehensible to non-scientists.  Doing this can ultimately increase the impact of your work and can even lead sometimes to press coverage and to better press coverage.

6. Be active on social media.  This is the way academic reputations are built today, so ignoring the opportunities presented is unwise.

7. If for some reason you do publish a closed-access article, remember that you still have Green open access options available; you can self-archive a copy of your article in a disciplinary or institutional repository.  Dr. McKiernan mentioned that she uses FigShare for her publications.

The most exciting thing about Erin McKiernan’s presentation was that it demolished, for many of us, the perception of open access as a risky choice for younger academics.  After listening to her expression of such a heartfelt commitment — and particularly the pictures of the people for whom she does her work, which puts a more human face on the cost of placing subscription barriers on scholarship — I began to realize that, in reality, OA is the only choice.

 

 

 

 

Authors' Rights, Licensing, Open Access and Institutional Repositories, Scholarly Publishing

So what about self-archiving?

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There is a persistent problem with polemics.  When writing to address someone else’s position with which one disagrees, it is easy to lose sight of the proverbial forest for the trees.

In my previous two posts, I was addressing a misunderstand that I am afraid might lead authors to be less attentive and assertive about their publication contracts than they should be.  The specific issue was whether or not it is feasible to maintain that a copyright is transferred only in a final version of a scholarly article, leaving copyright in earlier versions in the hands of the author.  I argued that this was not the case, that the distinction between versions is a construct used by publishers that has little legal meaning, and that author rights that do persist in earlier versions, as they often do, are created by the specific terms of a copyright transfer agreement (i.e., they are creatures of a license).  These points, which I believe are correct, prompted a number of people to get in touch with me, concerned about how these specific “trees” might impact the overall forest of self-archiving policies and practices.

So now I want to make several points that all address one conclusion; this argument about the nature of a copyright transfer does not necessarily have any significant impact on what we do to enhance and encourage self-archiving on our campuses.  Most of the practices I am aware of already take account of the argument I have been making, even if they are not explicit about it.

On the LibLicense list today, Professor Steven Harnad, who is a pioneer in the movement to self-archive scholarly papers, posted a 10-point strategy for accomplishing Green open access.  Essentially, he points out that a significant number of publishers (his number is 60%) allow authors to self-archive their final submitted versions of their articles, and that those who have retained this right should exercise it.  Elsevier is one such publisher, about which more later.  Harnad argues that there are other strategies available for authors whose copyright transfer agreements do not allow self-archiving of even the final manuscript.  One option is to deposit the manuscript in a repository but embargo access to it.  At least that accomplishes preservation and access to the article metadata, and it facilitates fulfillment of individual requests for a copy.  Another option is to deposit a pre-print (the version of the article before peer-review) in a pre-print repository, which is a solution that has long worked well in specific disciplines like physics and computer science.

All of these strategies are completely consistent with the point I have been making about copyright transfer agreements.  Harnad’s model recognizes that copyright is transferred (perhaps improvidently) to publishers, and is based on authors taking full advantage of the rights that are licensed back to them in that transaction.  This makes perfect sense to me and nothing I have written in my previous two posts diminishes from this strategy.

One of the questions I have received a couple of times involves campus open access policies and how they affect, or are affected by, copyright transfers.  These policies often assert a license in scholarly articles, so the question is essentially whether that license survives a transfer of copyright.

It is a basic principle of law, and common sense, that one cannot sell, or give away, more than one owns.  So if an author has granted a license to her institution before she transfers her rights to a publisher, it seems clear that the license should survive, or, to put it another way, that the rights that are transferred to the publisher are still subject to this prior license.  There was an excellent article written in 2012 by law professor Eric Priest about this situation, and his conclusion is “that permission mandates can create legally enforceable, durable nonexclusive licenses.”  The article provides an extensive analysis of the legal effect of this “Harvard-style” license, and is well worth being read in its entirety by all who are interested in the legal status of Green open access.

An additional wrinkle to the status of a prior license is provided by section 205(e) of the copyright law, which actually addresses the issue of “priority between conflicting transfer of ownership and nonexclusive license.”  This provision basically affirms what I have said above, that a license granted prior to a transfer of copyright survives the transfer and prevails over the rights now held by the transferee, IF it is evidenced by a written instrument.  Because of this provision, some schools that have a license that is created by an open access policy also get a document from the author at the time of OA deposit that affirms the existence of that license.  Such documentation helps ensure the survival of a policy-based license even after the copyright is later trnsferred to a publisher.

Even when we decide that a license for Green open access exists and has survived a copyright transfer, however, we still have a policy decision to make about how aggressively to assert that license.  Many institutional practices look to the terms of the copyright transfer and try to abide by the provisions found therein, usually relating to the version that can be used and when it can be made openly accessible.  They do this, I think, to avoid creating an uncomfortable situation for the authors.  Even if legally that license they granted would survive the transfer of rights, if a conflict with the publisher developed, the authors (whom we are, after all, trying to serve) would be in a difficult place.  So my personal preference is to conform our practice to reasonable publisher policies about self-archiving and to work with authors to get unreasonable policies changed, rather than to provoke a dispute.  But this is a policy matter for specific institutions.

Finally, I want to say a couple of things specifically about Elsevier, since it was Elsevier’s take down notices directed against author self-archiving that began this series of discussions.

Elsevier’s policies permit authors to self-archive the final manuscript version of an article but not the published version, and, as far as I know, all of its take down notices were directed against final published versions on institutional or commercial websites.  So it is true that in my opinion, based on the analysis I have presented over the past week, that Elsevier is legally justified in this take down campaign.  It may well be a stupid and self-defeating strategy — I think it is — but they have the legal right to pursue it.  Authors, however, also have the legal right, based on Elsevier’s policies that are incorporated into their copyright transfer agreements, to post an earlier version of the articles — the final author’s manuscript(s) — in place of these final published versions.  So I hope that every time a take down notice from Elsevier that is directed against the author of the work in question is received, the article that is taken down is replaced by a  final manuscript version of the same content.

As many know, Elsevier also has an foolish and offensive provision in its current copyright transfer agreement that says that authors are allowed to self-archive a final manuscript version of their article UNLESS there is an institutional mandate to do so.  As I have said before, this “you may if you don’t have to but not if you must” approach is an unjustifiable interference with academic freedom, since it is an attempt to tie faculty rights to specific policies that the faculty themselves adopt to further their own institutional and academic missions.  Elsevier should be ashamed to take this stance, and our institutions that value academic freedom should protest.  But based on what has been said above, we can also see how futile this approach really is.  If the institution has a policy-created license, that license probably survives the copyright transfer, as Eric Priest argues.  In that case, the denial of a self-archiving right only in cases where a license exists is meaningless precisely because that license does exist; authors could self-archive based on the license and do not need the grant of rights that Elsevier is petulantly withholding.  I said above that institutions should consider whether or not they want to provoke disputes by relying on the prior existence of a license to self-archive.  Elsevier, however, seems to have decided to provoke exactly that dispute with this provision, and they are even more unwise to do so since it is likely to be a losing proposition for them.