The long, wrong road to Open Access

[Stevan Harnad <amsciforum@gmail.com>]

** Cross-Posted **

On Fri, Jan 14, 2011 at 5:24 PM, Stancliffe, Andrew <astancl --
library.ucla.edu> wrote on liblicense:

> The UCLA Library is working with a faculty member here who has
> submitted an article to the journal Sleep.  We advised the author
> to modify the author's agreement, using the SPARC author's
> addendum, to retain copyright. The author received a reply from
> Sleep, which rejected the change, stating "I have never heard of
> any journal doing this.  Sleep would not publish any paper it
> does not hold copyright to."
>
> We're curious to know if anyone on the list has negotiated with 
> Sleep in the past and what their experiences have been.  Thanks 
> for any input you can give us.

This is the royal road to decades and decades more of lost 
research access, progress and impact.

It is the equivalent of trying to combat smoking by trying to 
persuade smokers to write individually to tobacco companies to 
ask them to manufacture fewer cigarettes.

(1) The goal is to provide Open Access, not to modify author 
copyright agreements.

(2) The SPARC author addendum is much too strong in any case: 
gratuitously and self-defeatingly strong:

(3) No publisher permission is required by authors to deposit the 
full-text of their refereed, revised, accepted final drafts in 
their own institutional repositories, immediately upon acceptance 
for publication.

(4) The bibliographic metadata (author, date, title, journal, 
etc.) are in any case immediately accessible to all would-be 
users.

(5) The majority of journals (including just about all the top 
journals) have already formally endorsed setting access to the 
full text of the deposit as Open Access immediately upon deposit.

(6) If, for the remaining minority of journals, the author wishes 
to observe a publisher embargo on Open Access, access to the 
deposit full-text can be set to "Closed Access" rather than "Open 
Access" during the embargo, and the author can email eprints to 
would-be users on request.

(7) This provides immediate Open Access to the majority of 
deposits plus "Almost Open Access" to the remaining minority, 
thereby providing for all immediate research usage needs and 
ensuring -- once it is being done universally -- that embargoes 
will die their natural, well-deserved deaths soon thereafter, 
under the growing pressure from the universal deposits, the 
palpable benefits of the majority Open Access and the contrasting 
anomaly of the minority of embargoed access and the needless 
inconvenience and delay of individual email eprint requests.

(8) But the best author strategy of all is to make all deposits 
immediately Open Access today, and to decide whether or not to 
Close Access to any one of them only if and when they ever 
receive a take-down notice from the publisher.

Authors will not receive publisher take-down notices because 
publishers (unlike authors, and librarians) already know very 
well today that trying to do that would soon lose them their 
authorships, who would migrate to the majority of journals that 
endorse immediate Open Access deposit. This has already proved 
true for the two decades'-worth of successful and unchallenged 
"don't-ask" deposits that we already have behind us -- at least 
two million of them, by computer scientists on their 
institutional websites and by physicists in Arxiv. With universal 
deposit (and especially with universal institutional and funder 
mandates to deposit) the incentive for publishers to request 
take-down is even lower.

So, to repeat: giving authors the exceedingly bad advice that 
what they should do, if they wish to provide Open Access to their 
articles, is to attempt to modify their copyright agreements 
(along the lines of the SPARC author addendum) one-by-one is not 
only advice that is doomed to fail in many instances (and not 
even to be tried in most), but it is diverting attention and 
efforts from the real solution. Making the attempt to modify 
author's copyright agreement can be quasi-mandated (as it is by 
Harvard, MIT and a few other institutions following their 
example), by reserving copyright in a blanket default 
institutional contract predating and hence mooting all subsequent 
contracts with publishers, but only at the cost of allowing the 
author the option to opt out of the prior blanket institutional 
copyright reservation contract in the face of -- or in 
anticipation of -- non-acceptance by the publisher.

It is for this reason that Harvard has (sensibly) adopted a 
simultaneous immediate-deposit mandate -- with no opt-out option 
-- alongside its copyright reservation policy. But a little 
reflection on this will make it apparent that the real work is 
being done by the immediate-deposit mandate, and the attempt to 
modify the copyright agreement with the author continues to be 
just a hit-or-miss affair, even if beefed up by the option of 
institutional contractual backing.

UC has only the blanket institutional copyright reservation 
policy, with the opt-out option, and no accompanying deposit 
mandate without opt-out; nor does UCLA have a deposit mandate of 
its own. Hence there one-by-one attempts, like UCLA's, to modify 
copyright are not only a hit-or-miss affair, but a colossal and 
quixotic strategic error, and a doomed and disheartening waste of 
precious time (and research uptake and impact).

What OA advocates worldwide should be using all their energy to 
bring about is the adoption of an immediate-deposit mandate. That 
done, it no longer matters that one-by-one copyright modification 
efforts are a drop in the bucket, because the deposit mandate 
will be doing the real work, providing Open Access (to the 
majority of an institution's annual articles, and 
Almost-Open-Access to the rest) and setting the right example for 
other institutions. Once immediate deposit mandates scale up 
globally, publisher copyright contracts will adapt to the new 
reality as a matter of natural course.

But if we instead keep pinning our hopes and efforts on 
one-by-one, hit-and-miss attempts by authors to modify copyright 
contracts, the ride is destined to be a long and possibly endless 
one.

It is almost as amazing as it is appalling how long the academic 
community keeps heading off in all directions except the right 
one when it comes to Open Access: publishing reform ("gold OA"), 
copyright reform, peer review reform -- every road but the very 
one that the online era has opened up for us, the road that made 
Open Access itself conceivable, possible, and immediately 
reachable: universal author self-archiving and self-archiving 
mandates by their institutions and funders.

No; encouraging 1000 flowers to bloom has not helped: Instead, it 
has distracted and diverted us from the swift and certain 
solution; let's hope it does not keep it up for another 1000 
days, months, or years...

For tried-and-tested policy guidance, please turn to 
EnablingOpenScholarship. The wait has been long enough already: 
http://www.openscholarship.org/

Stevan Harnad