[GOAL] Re: [sparc-policy] Re: Re: Elsevier's query re: "positive things from publishers that should be encouraged, celebrated, recognized"

[Stevan Harnad]

On Tue, May 15, 2012 at 8:35 AM, James Ryley <james at ryley.com> wrote:
> Hi Stevan,
>
> I'm curious as to why you think a "right is a right." ... There is nothing
> saying that a contract cannot have conditional logic in it.
>
> 1) If your institution does not mandate institutional deposit,
> you may deposit.
> 2) Otherwise, you may not.

Hi James,

Yes, there is always a (trivial) way to reduce this all to formalistic
double-talk, both in publisher agreements and in institutional
mandates:

PUBLISHER AGREEMENT: Our authors retain the right to depositt
voluntarily to their institutional repository, but not if their
institutional policy requires deposit.

INSTITUTIONAL POLICY: Our researchers are required to deposit to our
institutional repository, but not if their publisher agreement does
not allow required deposit: In that case our researchers are not bound
by this policy and are invited to use their right to deposit
voluntarily.*

But playing this game is not really the point here. Here's what it's
really about:

(1) The pressure for OA from the worldwide research community is
clearly growing with time.

(2) Elsevier has long had a public image problem because of its high
prices, and that problem too is growing.

(3) Agreeing to immediate, un-embargoed green gratis self-archiving of
the author's final draft is a small concession to the worldwide
pressure for OA, and making it improves Elsevier's image as not being
anti-OA after all.

(4) But (3) also entails some risk to the sustainability of the
subscription model.

(5) So Elsevier is here trying to keep the benefits to its declining
image from adopting (3) while at the same time hedging against the
risk it entails.

(6) The result is a self-contradictory policy that gives with one hand
and takes it away with the other.

This has to be exposed, publicly, and unequivocally, leaving Elsevier
with the clear choice of either (i) being exposed as having reneged on
its formerly positive policy on Green Gratis OA, or (ii) dropping the
hedging clause and being lauded for taking a genuinely positive step
on Green Gratis OA.

That's all there is to it. It's not about either the logic or the
legalistics or the semiotics of "rights." It's about whether or not
Elsevier is or is not genuinely Green on (Gratis) OA self-archiving/

*By the way, what is really at issue here is not the right to
*deposit* is but the right to deposit *and make the deposit
immediately OA* (unembargoed). The ID/OA (Immediate Deposit, Optional
Access) mandate was already immune to Elsevier's recent
self-contradictory policy hedge, because it only requires immediate
internal deposit in the institutional repository (an
institution-internal matter over which publishers have no say
whatsoever), not immediate OA -- leaving it up to the author whether
and when to set access to that deposit as OA. (That's why Elsevier
uses the language of "posting" [to the open web] rather than
"depositing" in an institutional repository which, as long as the text
is institution-internal [Closed Access or "dark"] rather than freely
accessible webwide, is outside the publisher's remit.)
http://openaccess.eprints.org/index.php?/archives/71-guid.html

Stevan Harnad

On Tue, May 15, 2012 at 8:35 AM, James Ryley <james at ryley.com> wrote:
> Hi Stevan,
>
> I'm curious as to why you think a "right is a right." I agree that the
> wording and apparent meaning are strange, but I also feel that at the same
> time, strange though it may be, the meaning is clear. There is nothing
> saying that a contract cannot have conditional logic in it. So, in this
> case:
>
> 1) If your institution does not mandate institutional deposit, you may
> deposit.
> 2) Otherwise, you may not.
>
> Legally, I see no FUD there. And, the intent is clear: "We will make it hard
> on you if your institution implements policies that go against our interests
> (that is, if your institute mandates deposit, since that is the road to Open
> Access)."
>
> Unless I missed something and they are on record as saying that is not their
> intent or their legal interpretation?
>
> Sincerely,
> James Ryley, PhD, RPA
> SumoBrainSolutions – Intellectual Property Solutions, Consulting & Data
>
> Providers of:
>
>     CobaltIP – Patent Analytics Platform for Search & Business Intelligence
>     FreePatentsOnline.com  –  Comprehensive Patent Searching Database
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> as legal or patenting advice.
>
>
>> -----Original Message-----
>> From: Stevan Harnad [mailto:amsciforum at gmail.com]
>> Sent: Tuesday, May 15, 2012 2:21 AM
>> To: Global Open Access List (Successor of AmSci)
>> Cc: LibLicense-L Discussion Forum
>> Subject: [sparc-policy] Re: [GOAL] Re: Elsevier's query re: "positive
> things
>> from publishers that should be encouraged, celebrated, recognized"
>>
>> ** Cross-Posted **
>>
>> On Mon, May 14, 2012 at 6:59 PM, Wise, Alicia (ELS-OXF)
>> <A.Wise at elsevier.com> wrote:
>>
>> > ...you would like all publishers to allow immediate green oa posting.
>> > What do you think some of the potential concerns about this might be,
>> > and how might those concerns be alleviated?
>> >
>> > ...With our posting policy our intent is certainly not to confuse or
>> > intimidate authors, but to ensure the sustainability of the journals
>> > in which they choose to publish.  Perhaps the Finch group will shed
>> > light on how to solve this challenge!
>>
>> The concern is not about Elsevier's business goals but about the *meaning*
>> of a self-contradictory publisher agreement (sic) on the rights (sic)
> retained
>> (sic) by Elsevier authors that states:
>>
>> "[As Elsevier author you retain] the right to post a revised personal
> version of
>> the text of the final journal article (to reflect changes made in the peer
>> review process) on your personal or institutional website or server for
>> scholarly purposes"
>>
>> and then follow it by a clause that contains the following piece  of
>> unmitigated FUD that (if authors and institutions don't ignore it
> completely,
>> as they should) contradicts everything that came before it:
>>
>> "(but not in... institutional repositories with mandates for systematic
> postings
>> unless there is a specific agreement with the publisher)."
>>
>> An author right is either retained or it is not. And if it is a right, and
> it is
>> retained, and a publisher agreement formally states that it is retained,
> then
>> the author can exercise that retained right irrespective of whether the
>> author's institution mandates that the author should exercise that
> retained
>> right.
>>
>> It is as simple as that. And any attempt by Elsevier to defend retaining
> the
>> clause is just more FUD:
>> A right is a right (and a formal publisher agreement attesting that it is
> a right is
>> only an agreement) only if the agreed author right can be exercised
> without
>> requiring further publisher agreement.
>>
>> Stevan Harnad
>>
>> --
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