Re: Elsevier and IOP Still Fully Green and Onside With the Angels

["FrederickFriend" <ucylfjf@ucl.ac.uk>]

Stevan's message brings out the importance of having a clear view 
of what is  meant by the self-archiving by authors of research 
articles. As the FAQ to  the Budapest Open Access Initiative 
makes clear, the original focus was on  the self-archiving of 
preprints. I cannot remember us using the term  "author's final 
draft" at the Budapest meeting but effectively that is what  we 
meant. Since then some OA advocates (including myself) have been 
less  precise than we should have been in our definition of the 
version to be  deposited in repositories. In an atmosphere of 
lobbying by many publishers  against any form of open access, the 
push was to secure the deposit of any  version that an author 
felt able to place into their home repository. With  hindsight 
the looseness of some definitions for self-archiving beyond the 
original definition may have led to claims from publishers that 
mandates are  unfunded, in that while publishers would have made 
no contribution to the  author's final version, they could claim 
that the deposit of a copy-edited  version did not recognise 
their contribution in copy-editing. Calls for  repository deposit 
of versions beyond the author's final version may also  have 
fuelled publishers' fears of subscription cancellations.

Now that some publishers previously opposed to open access are 
taking a more  positive approach, there is an opportunity to 
return to the vision of the  original BOAI definitions of 
self-archiving and open access journals as  complementary, with 
neither being a threat to the future of journal  publishing. If 
(and for some publishers this may still be a barrier)  publishers 
can accept the legitimacy of the self-archiving of the author's 
final manuscript (whether or not mandated by an author's funder 
or  employer), there should be no problem for open access 
advocates in accepting  the legitimacy of treating versions into 
which publishers have invested  resources for copy-editing as 
"gold" rather than "green". There is a grey  area in respect of 
articles peer-reviewed but not copy-edited, as publishers  will 
have invested in the administration of peer review while the cost 
of  peer review itself has been borne by the academic community. 
There is also  need to clarify the distinction between "libre" 
and "gratis" OA as applied  to the two routes to open access. The 
re-use rights embodied in "libre" are  vital for research and 
teaching, and it can be argued that these rights can  be applied 
to the author's final draft in the repository without permission 
from the publisher. However, the actual implementation of re-use 
rights may  be more applicable to "gold" versions.

I am sending this message as a contribution to the dialogue 
between  publishers and the academic and library communities on 
future developments.  Clearly open access is here to stay. It may 
be that some in every  stakeholder community will disagree with 
the approach outlined above, but  agreement on what we are all 
trying to achieve would enable open access to  be successful for 
all stakeholders.

Fred Friend

-----Original Message-----
From: Stevan Harnad
Sent: Saturday, June 25, 2011 2:11 AM
To: liblicense-l@lists.yale.edu
Subject: Re: Elsevier and IOP Still Fully Green and Onside With 
the Angels

On 2011-06-24, at 6:52 AM, Wise, Alicia (Elsevier) wrote:

> Our journal authors... can...  post voluntarily the accepted
manuscript version on a personal or institutional web site or
server for scholarly purposes...

As noted, Elsevier is still fully green and on the side of the
angels regarding author self-archiving. This endorsement of
immediate (unembargoed) posting is all this means.

> We believe the voluntary posting of manuscripts is an
acceptable practice for authors, and that both institutions and
publishers should respect their choices.

And I'm confident that Elsevier also believes that publishers
should and will respect institutions' voluntary policy choices --
for example, if institutions mandate posting by their employees.
(In any case, publishers have no choice but to respect
institutional policy.)

Elsevier authors are free to post, and their institutions are
free to mandate that their employees post. That's all there is to
it.

A contractual agreement cannot be contingent on whether a right
that is retained by the author is exercised "voluntarily":
Everything an author chooses to do is voluntary, including
complying with his employer's policies.

***

ASIDE: There is, however, a possible basis for genuine
misunderstanding here, and, on one construal, Elsevier would
definitely have a valid point (but that point has nothing to do
with Green OA self-archiving):

Most institutional mandates are simply mandates to post, i.e., to
make the author's final draft freely accessible to all users on
the web immediately upon acceptance for publication.

But there are a few other kinds of institutional mandates,
needlessly demanding ones, that would require authors to retain
further rights, over and above the right to post the author's
final draft free for all on the web immediately upon acceptance
for publication (in other words, over and above Green OA), for
example, the right to post the publisher's version of record, or
the right to allow users to re-use or republish the posted
article (e.g., by adopting various Creative Commons licenses that
may not be compatible with the copyright agreement with the
publisher): in general, the right to provide not just "gratis" OA
(free online access) but also "libre" OA (gratis OA plus various
other permissions).
http://openaccess.eprints.org/index.php?/archives/442-guid.html

This kind of needless over-reaching by some institutions and
funders is not only extremely unfortunate and counterproductive,
because it predictably induces even angelic Green publishers like
Elsevier and IOP to balk at going that far, but it also weakens
mandates, because such strong demands in turn require allowing
authors to opt out of the mandate if they cannot get their
publisher to agree. That's as bad as the pseudo-mandates that say
"you are required to self-archive -- if your publisher agrees."
(There is a far better mandate and strategy --
Immediate-Deposit/Optional-Access  (IDOA) & the eprint-request
Button -- for dealing with articles published in non-Green
journals.)

***

But we are not talking here about such gratuitously
over-demanding mandates, but only about Green Gratis OA
self-archiving mandates that merely require authors to do what
Green publishers have already endorsed: immediate posting of the
author's final draft, free for all.

> The systematic posting of manuscripts, for example because of a
mandate to post, is only agreeable if done in ways that are
sustainable for the underlying journal.

Authors post individually, and publisher copyright agreements are
agreements with authors.

It is not clear what "systematic posting" means, but if it means
that an institution systematically requires its employees to
post, then, with all due respect, this is absolutely none of the
business of the publisher!

The publisher sets policy for its authors; the institution sets
policy for its employees.

The author's (retained) rights agreement with the publisher has
nothing whatsoever to do with what the author's institution's
policy might or might not be.

To put it another way: Retained rights are not contingent on the
author's reasons for exercising them. If you have a license to
drive, it cannot state: "You only have the right to drive
voluntarily; you may not drive if driving is a condition of your
employment"...

> Our first systematic posting agreements have been with funding
bodies and date back to 2005.  Authors funded by organizations
such as Howard Hughes Medical Institute (HHMI) and NIH could not
have complied with the systematic posting policies of these
funding bodies under the terms of our voluntary posting policy,
so we created agreements or arrangements with those funders to
enable authors to comply in ways that we believed would be
sustainable.

I think it is perfectly fair that funders that needlessly demand
more than Green Gratis OA should have to pay for it, or have it
embargoed, or both.

But (most) institutions and funders are only mandating Green
Gratis OA, not asking for more; hence no further arrangements are
necessary (with Green publishers -- and IDOA & the Button takes
care of non-Green publishers).

> Embargo periods are a feature of these agreements or
arrangements.  The embargo periods are journal specific and
differ according to the varied usage patterns that exist across
science and social science areas. A high percentage of these are
for a 12 month period, predominantly in life and health sciences,
but in other areas such as mathematics and social sciences longer
embargo periods of typically 24 or 36 months are necessary to
ensure the sustainability of the underlying journals.

Green publishers, by definition, have no embargo on Green Gratis
OA.

For Libre OA my own feeling is that the fees and embargoes are a
fair punishment for those institutions and funders that were to
short-sighted to see that they were needlessly over-reaching and
hence gratuitously inviting publisher opposition -- especially
because the confusion it is causing to disentangle publisher
reactions to that over-reaching from their acceptance of Green
Gratis OA is causing confusion even for those institutions and
funders that are only mandating Green Gratis OA, or contemplating
doing so.

But fortunately, a clear-headed reading of the new clauses in the
Green publishers' self-archiving policies shows that nothing has
changed: authors may provide immediate Green Gratis OA (and
institutional or funder mandates to do so have absolutely no
bearing on the matter).

> During the period when the embargo period would apply to posted
manuscripts there is wide availability of articles.  93% of
researchers surveyed in academic institutions reported that they
are satisfied with access to research information in journal
articles (Access vs. Importance, A global study assessing the
importance of and ease of access to professional and academic
information Phase I Results, Publishing Research Consortium,
October 2010 ? 4,109 respondents).  However we are not complacent
with even this great result, and systematically identify and
close access gaps in sustainable ways through programmes such as
Research4Life which provides free and very low cost access to
researchers in the world?s poorest countries.  We also have an
extremely active program of pilots to provide innovative access
services to members of the public, patients and their families,
people working in small and medium sized businesses, students,
etc.

Yes, yes, that's all well and good. To the extent that there is
enough access already, supplementary access to the author's final
draft well not make a bit of difference.

But to the extent that there are would-be users who lack
subscription access, it will make a world of difference.

> Please note that as our early systematic posting agreements
have been with funding bodies, we are still in test-and-learn
mode for institutional agreements.

With institutional Green Gratis OA self-archiving mandates there
is nothing further to be said or done. All is in order.

With institutional Green Libre OA mandates, all bets are off.
Green Publishers do not become one bit less green of angelic if
they elect to charge for and/or embargo Libre OA.

(Note that I have nothing at all against Libre OA or CC licenses.
They are simply premature, at a time when we do not yet even have
Green Gratis OA, and they are clearly getting in the way of it.
Perhaps publisher constraints on anything over and above
immediate Green Gratis OA self-archiving will help to clear the
air so we can move forward toward universal Green Gratis OA
mandates from all the planet's institutions and funders -- and
thereby to universal OA, at long last.)