[GOAL] Re: Is It True That It's Illegal To Mandate Green OA Self-Archiving in Germany?

[Stevan Harnad]

On Mon, Nov 26, 2012 at 6:35 PM, Hans Pfeiffenberger <
hans.pfeiffenberger at awi.de> wrote:

 The so called "Zweitveröffentlichungsrecht" - if it comes! - will be a *
> freedom* to populate repositories ... But this modification of the German
> copyright law (Urheberrecht) will in no way *mandate the exercise* of
> that freedom....
>
> There will be no (strong) OA mandate of any kind in Germany due to
> constitutional concerns (art.5), at least not for some time ...
> But the legal situation of those willing to deposit or being forced, e.g.
> by the FP7/H2020 mandate, will be much more clear.
>

A little clarification:

(1) Ironically, the *strongest* OA mandate is not the requirement to make
articles OA immediately, heedless of publisher embargoes (although that, of
course, is the most sensible thing for every author to do, just as the
computer scientists and physicists have been doing for over two decades now
without giving it a second thought).

(2) The reason that is not the strongest mandate is precisely because so
many scholars *do* give it a second (and third) thought what their
publishers "allow."

(3) So the strongest (ID/OA) mandate is the one that moots these
compunctions completely, by simply requiring *immediate deposi*t, but
allowing OA to the deposit to be embargoed if the scholar wishes.

(4) You don't need to wait for a revision of copyright law to deposit
immediately, or to mandate immediate deposit.

(5) And mandating deposit is no more (or less) an abrogation of scholarly
freedom (in Germany or anywhere) than mandating submission of CVs online
rather than on paper.

(6) Yes, the FP7/H2020 mandate will at last make this token drop in the
minds of German scholars who have been too heedful of the absurd legal
(constitutional!) advice they have been getting on the subject of OA
mandates...

(I know Hans agrees with me, so this is not by way of taking issue with
what Hans has said.)

Stevan Harnad
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