Re: Definition of Open Access

[Stevan Harnad <harnad@ecs.soton.ac.uk>]

     Pertinent Prior AmSci Topic Threads:
     "Definition of Open Access"
     http://users.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/5466.html

     "Free vs. Open Access"
     http://users.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/3282.html

     "Is there any need for a universal Open Access label?"
     http://users.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/3224.html

On Mon, 28 May 2007, Rick Anderson wrote:

>> SH: It is my impression that rights expertise is so focussed 
>> on the formal that it has lost sight of the functional: OA has 
>> nothing to do with commercial rights, either formally or 
>> functionally.
>
> RA: This depends entirely on the model of OA under 
> consideration.

There is no "model of OA": OA is OA. There are two ways to 
provide OA (Green and Gold), but what is provided is OA in both 
cases. This is not an exercise in formalism: Providing OA is 
researchers providing free online access to their research for 
researchers so they can use it in their research. It can be done 
by publishing in a conventional journal and making the postprint 
free online by self-archiving it (Green OA) or by publish in an 
OA journal that makes the postprint free online.

> RA: Both the Bethesda and Berlin statements use the following 
> language: "The author(s) and the copyright holder(s) ... 
> grant(s) to all users a free, irrevocable, worldwide right of 
> access to, and a license to copy, use, distribute, transmit and 
> display the work publicly and to make and distribute derivative 
> works." (The Bethesda statement adds the word "perpetual" 
> before the phrase "right of access"; the Budapest statement 
> phrases the same ideas slightly differently.)  By granting to 
> the world at large the right to copy, distribute, display and 
> create derivative works, authors effectively divest themselves 
> of all the rights that traditionally accrue to authors 
> exclusively.  Whether this is a good thing or a bad thing is 
> open to debate, but there's no question that the effect of OA 
> under any of these three models has both a formal and a 
> functional effect on authors' rights.

Rick is quite right about this. Berlin, and especially Bethesda, 
from which Berlin was derived, veered strongly toward a 
definition of Gold OA in place of a generic definition of OA 
itself -- causing (and probably also resulting from) considerable 
confusion about what OA means. I also have to confess that even 
the Budapest (BOAI) statement contained some unnecessary extra 
constraints on what is meant by OA (and I was one of the 
co-signers of that version). It took a little while for things to 
come fully into focus.

But there is no reason to be formalistic about this: Errors are 
there to be corrected; definitions can be updated. OA just means 
FREE ONLINE ACCESS to the full-text (of journal articles, in the 
first instance). That automatically includes everything that 
comes with the online territory (i.e., the web), with no need 
whatsoever to stipulate it separately (linking, downloading, 
generating local hard-copy, local storage, personal 
data-crunching).

The rest of the stipulations are completely superfluous and 
counterproductive, adding gratuitous hurdles and deterrents, to 
Green OA in particular. They apply only to a journal providing 
Gold OA (and should be specified as such), not to OA itself. For 
a conventional journal article, made Green OA by self-archiving 
it online, free for all -- Larry Lessig calls this "naked OA" -- 
there is no requirement to grant extra licensing or 
"derivative-works" rights (unless the author wants to grant them, 
but then that's over and above OA). In particular, for Green OA 
articles, already protected by conventional copyright, naked OA 
is enough for now.

OA itself is a form of access-provision, not a form of 
publication. Gold OA is a form of publication.

The only two extra constraints it became necessary, in hindsight, 
to add, was that OA must be permanent and immediate. That was to 
exclude obvious gimmicks and abuses of the very idea of OA, such 
as making an article freely accessible online for N days only, as 
a promotional ploy, or making it freely accessible only after a 
1-year embargo. The motivation for OA is research access and 
progress, and loopholes for such tomfoolery needed plugging up. 
Adding Immediate and Permanent does the trick.

>> SH: I expect that one can waive one's right to breath air too, 
>> if one is silly enough to agree to do so, but that, too, is 
>> not the point under discussion here...

> RA: It's exactly the point that was under discussion.  Your 
> statement was that "Fair use is not a right that a copyright 
> transfer agreement can take away from anyone, especially the 
> author," and it is completely wrong.

Rick is again quite right concerning those copyright transfer 
agreements that explicitly state "I waive my author Fair Use 
Right to send individual copies to researchers requesting my 
work." But as far as I know, no publisher has ever drafted, and 
no author has ever signed, such an absurd contract. (So, again, 
talking about it is merely formalism, of no practical import for 
the real, practical matter at hand: researchers providing free 
online access to their refereed research findings for other 
researchers who want to use them.)

Stevan Harnad