Conflating Open Access With Copyright Reform: Not Helpful to Open Access

SUMMARY: Professor Shavell’s paper on copyright abolition conflates (i) books with journal articles, (ii) Gold OA with Green OA, and (iii) the problem of Open Access with the problem of copyright reform. Although copyright reservation by authors and copyright reform are always welcome, they are unnecessary for universal Green OA; and needlessly suggesting that copyright reservation/reform is or ought to be made a prerequisite for OA simply slows down progress toward reaching the universal Green OA that is already fully within the global research community’s grasp.

Critique of:

Shavell, Steven (2009) Should Copyright Of Academic Works Be Abolished?

[S. Shavell’s Summary] “The conventional rationale for copyright of written works, that copyright is needed to foster their creation, is seemingly of limited applicability to the academic domain. For in a world without copyright of academic writing, academics would still benefit from publishing in the major way that they do now, namely, from gaining scholarly esteem. Yet publishers would presumably have to impose fees on authors, because publishers would not be able to profit from reader charges. If these publication fees would be borne by academics, their incentives to publish would be reduced. But if the publication fees would usually be paid by universities or grantors, the motive of academics to publish would be unlikely to decrease (and could actually increase) — suggesting that ending academic copyright would be socially desirable in view of the broad benefits of a copyright-free world. If so, the demise of academic copyright should be achieved by a change in law, for the “open access” movement that effectively seeks this objective without modification of the law faces fundamental difficulties.”

[Note: Professor Shavell’s posting as well as the critique below are unrefereed, unpublished drafts (“preprints“). They have both been posted publicly, but they do not constitute formal “publications” in the academic sense, let alone peer-reviewed publications. In particular, Professor Shavell’s working draft was posted in order to solicit comments, on the basis of which it is likely to be revised before being submitted for publication. These unpublished postings can, however, be referred to and cited, as long as the user is careful to make it clear that they are prepublication working drafts rather than lapidary refereed postprints that have been accepted for publication by a journal. This is all part of evolving scholarly practice in the online era.]

Professor Shavell’s paper contains useful analysis and advice about scholarly/scientific book publication, economics and copyright in the digital era, but on the subject of refereed journal articles and open access it contains too many profound misunderstandings to be useful.

(1) What are “academic works”? Shavell largely conflates the problem of book access/economics/copyright and journal-article access/economics/copyright, as well as their respective solutions.

The book and article problems are far from the same, and hence neither are their solutions. (And even among books, the boundary between trade books and “academic” books is fuzzy; nor is an esoteric scholarly monograph the same sort of thing as a textbook, a handbook, or a popularization for the general public by a scholar, although they are all “academic.”)

Books are single items, bought one-time by individuals and institutions — journal articles are parts of serials, bought as annual subscriptions, mostly by institutions.

Books are still largely preferred by users in analog form, not digital-only — journal articles are increasingly sought and used in digital form, for onscreen use or local storage and print-off. (OA only concerns online access.)

Print-on paper books still cost a lot of money to produce — digital journal article-texts are generated by their authors. In the online age, journals need only provide peer review and certification (by the journal’s title and track-record): no print edition, production or distribution are necessary.

It is not clear that for most or even many authors of “academic works” (whatever that means) the sole “benefit” sought is scholarly uptake and impact (“scholarly esteem”), rather than also the hope of some royalty revenue — whereas it is certain that all journal article authors, without a single exception, do indeed seek solely scholarly uptake and impact and nothing else.

(2) What is Open Access? Shavell largely conflates fee-based Gold OA (journal publishing) and Green OA (journal-article self-archiving), focusing only on the former, and stressing the deterrent effect of having to pay publishing fees.

(3) Why Pay Pre-Emptive Gold OA Fees? Gold OA publishing fees are certainly a deterrent today. But no publishing fees need be paid for Green OA while institutional subscriptions are still paying the costs of journal publishing.

If and when universal Green OA — generated by universal Green OA self-archiving mandates from institutions (and funders) worldwide — should eventually cause institutions to cancel their journal subscriptions, rendering subscriptions no longer a sustainable way of recovering the costs of journal publishing, journals will cut costs, phase out inessential products and services that are currently co-bundled into subscriptions, and downsize to just providing and certifying peer review, its much lower costs paid for on the fee-based Gold OA cost-recovery model out of the institutional windfall subscription cancellation savings.

Shavell instead seems to think that OA would somehow need to be paid for right now, by institutions and funders, out of (unspecified) Gold OA funds, even though subscriptions are still paying for publication today, and even though the pressing need is for OA itself, not for the money to pay for fee-based Gold OA publishing.

Universal OA can be provided by mandating Green OA today. There is no need whatsoever for any extra funds to pay for Gold OA.

(4) Why/How is OA a Copyright Issue at all? Shavell largely conflates the issue of copyright reform with the issue of Open Access, suggesting that the way to provide OA is to abolish copyright.

This is not only incorrect and unnecessary, but redirecting the concerted global efforts that are needed to universalize Green OA Mandates toward copyright reform or abolition will again just delay and deter progress towards universal Green OA.

Green OA can be (and is being) mandated without any need to abolish copyright (nor to find extra money to pay Gold OA fees).

Shavell seems to be unaware that over 90% of journals already endorse Green OA self-archiving in some form, 63% endorsing Green OA self-archiving of the refereed final draft immediately upon acceptance for publication. That means at least 63% Immediate Green OA is already potentially available, if mandated (in contrast to the 15% [not 5%] actual Green OA that is being provided spontaneously, i.e., unmandated, today).

And for the remaining 37% of journal articles, the Green OA mandates can require them to be likewise deposited immediately, as “Closed Access” instead of Open Access during any publisher access embargo, with the Institutional Repository’s “email eprint request” Button tiding over research usage needs by providing “Almost OA” during any embargo.

This universally mandated 63% OA + 37% Almost-OA will not only provide almost all the research usage and impact that 100% OA will, but it will also hasten the well-deserved death of publisher access embargoes, under the mounting pressure for 100% OA, once the worldwide research community has at last had a taste of 63% OA + 37% Almost-OA (compared to the unmandated c. 15% OA — not 4.6% as in Shavell’s citation — that we all have now).

In conclusion: Professor Shavell’s paper on copyright abolition conflates (i) books with journal articles, (ii) Gold OA with Green OA, and (iii) the problem of Open Access with the problem of copyright reform. Although copyright reservation by authors and copyright reform are all always welcome, they are unnecessary for universal Green OA; and needlessly suggesting that copyright reservation/reform is or ought to be made a prerequisite for OA simply slows down progress toward reaching the universal Green OA that is already fully within the global research community’s grasp.

Stevan Harnad
American Scientist Open Access Forum

The Power and Purpose of the Email Eprint Request Button

KG:I do not think that using the request button is a valid OA strategy. My own experience was that I received few response when requesting an article. The St. Gallen IR manager said that requesters can obtain much more positive results when mailing to the scholar directly.

(1) Michael White reported that the response rates for the email eprint request button at U. Stirling are about 50% fulfillment, 5% refusal and 45% no response.

(2) He also said that some of the no-responses may have been (2a) elapsed email addresses, (2b) temporary absence, (2c) embargoed theses, and (2d) author unfamiliarity with the purpose and use of the email eprint request Button.

(3) He also noted that the response rates may well improve with time. (I would add that that’s virtually certain: It is still exceedingly early days for the Button. And time — as well as the growing clamor for access [and impact] — is on the Button’s side.)

(4) It is harder to imagine why and how the long and complicated (and obsolescent) alternative procedure — of a user discovering an article that has not been deposited by the author, finding the author’s email address, and sending him an email eprint request, to which the author must respond by sending an email and attaching the eprint — would “obtain much more positive results” than the author depositing the article in his IR, once, and letting the IR’s Button send the email requests for the requesters to the author with no need for look-up, and only one click needed from the author to fulfill the request.

(5) The email eprint request Button does not provide OA; it only provides “Almost OA.” But that’s infinitely better than no OA. And the Button (and the Immediate-Deposit/Optional-Access — ID/OA — Mandate, for which the Button was designed) make it possible for institutions and funders to adopt Green OA mandates that neither need to allow exemptions from immediate deposit nor do they need to allow publishers to dictate whether or when the deposit is made.

(If publishers have a say, it is only about whether and when the deposit is made OA, not about whether or when the deposit is made at all. Since 63% of journals are already Green on immediate OA, the ID/OA Button means that an institution or funder can reach uncontroversial consensus on requiring 100% deposit, which then yields at least 63% immediate OA and 37% Almost-OA, whereas the alternative is not arriving at a consensus on mandating OA at all, or adopting a weaker mandate that only provides OA after an embargo period, or only at the publisher’s behest, or allows author opt-out. And the most important thing is not only that the ID/OA provides more access and is easier to reach agreement on adopting, but it will also quite naturally drive embargoes into their well-deserved graves, as the mandates and their resulting OA — and the demand for it — grow and grow.)

KG:The Oppenheim/Harnad “preprint & corrigenda” strategy “of tiding over a publisher’s OA embargo: Make the unrefereed preprint OA before submitting to the journal, and if upon acceptance the journal seeks to embargo OA to the refereed postprint, instead update the OA preprint with a corrigenda file” is a valid OA strategy because the eprint is PUBLIC.

What makes a strategy “valid” is that it works: increases access, Open Access, and Open Access mandates.

Both the “preprint&corrigenda” strategy and the “ID/OA-mandate&Button” strategy can increase access, OA, and OA mandates, but the ID/OA-mandate&Button strategy is universal: it scales up to cover all of OA’s target content, whereas the preprint&corrigenda strategy is not universal, for it does not and cannot cover those disciplines (and individual authors) that have good (and bad) reasons not to want to make their unrefereed preprints public.

KG:If an article is published then the author hasn’t any right under OA aspects to choose which requester has enough “dignity” to receive an eprint. I cannot accept the arbitrariness of such a decision under OA circumstances.”

Relax. The reason neophyte self-archiving authors are not fulfilling Button requests is because they are either not receiving them or don’t yet understand what to do with them, not because they are making value judgments about who does and does not merit the privilege of accessing their work!

They’ll learn: If necessary, they’ll learn under the pressure of the impact-weighting of publications in performance evaluation. But my hunch is that they already know they want the user-access and user-impact (from the eager way they do vanity-searches in the biobliography of every work they pick up in their research field, to check whether their own work has been cited). So all they really need to learn now is how the Button works, and why.

Stevan Harnad
American Scientist Open Access Forum

Fifty Years of Author Fulfillment of Reprint/Eprint Requests

SH: “[T]here is nothing either defensible or enforceable that a publisher can do or say to prevent a researcher from personally distributing individual copies of his own (published) research findings to individual researchers, for research purposes, in any form he wishes, analog or digital, at any time. That is what researchers have been doing for many decades, whether or not their right to do so was formally enshrined in a publisher’s ‘author-re-use’ document.”

RQJ: This discussion strikes at the heart of green OA implementation. Among other things, it’s why we have mandates.”

Actually that’s not correct. What I was referring to above — authors mailing an individual analog reprint or emailing an individual digital eprint to an individual requester for research purposes — predates both OA (Green and Gold) and (Green) OA mandates.

The only connection with Green OA mandates is that email eprint requests for Closed Access deposits whose metadata are openly accessible allow users to request — and authors to provide — individual one-on-one “Almost OA” during any OA embargo period: That way Green OA mandates can require deposit of the final refereed draft immediately upon acceptance, with no exceptions or opt-outs, no matter how foolish a copyright transfer agreement the author may have signed.

If a Green OA mandate does not require immediate deposit, then it is completely at the mercy of publisher OA embargoes: The author deposits only if and when the publisher stipulates that he may deposit, because all deposits are OA. If, instead, immediate deposits are required in every case, without exception, but where OA is publisher-embargoed the deposit may instead be made Closed Access during the embargo, rather than OA, then the email eprint request button allows the author to provide “Almost OA” on an individual case by case basis for the Closed Access articles during the embargo.

But if the mandate instead requires deposit only after the publisher embargo has elapsed, that means the only access during the embargo period is subscriber-access. That means a great loss of potential research usage and impact.

RQJ: I believe Harnad is likely incorrect as a matter of law (at least in the US), but ultimately this may end up as a court case that gives us more explicit guidance.

If researchers sending individual reprints and eprints to individual requesters for research purposes has not gone to court for over a half century, it is difficult to imagine why someone would think it will go to court now: Publishers suddenly begin suing their authors for fulfilling reprint requests?

RQJ: Note that “research findings” (which are the stuff of patent or academic integrity if protected at all) are very different from their expression in text, which is what is transferred through the copyright agreement.”

We are not talking about research findings, we are talking about copies of verbatim (published) reports of research findings: sending them to individual requesters, as scholars and scientists have been doing for over half a century (since at least the launch of Eugene Garfield’s “Current Contents” and “Request-a-print” cards):

Swales, J. (1988), Language and scientific communication. The case of the reprint request. Scientometrics 13: 93?101. “This paper reports on a study of Reprint Requests (RRs). It is estimated that tens of millions of RRs are mailed each year, most being triggered by Current Contents…

RQJ: Note also that “what researchers have been doing for many decades” is disputable — arguably what researchers did anteXerox was distribute the 100 or so offprints of their article that they got as part of their Faustian bargains.”

They could also mail out copies of their revised, accepted final drafts.

And whether or not any of that was “disputable” before xerox, it certainly wasn’t ever contested — neither with the onset of the xerox era, nor with the onset of the email era.

RQJ: Note also that courts would be under strong conflicting pressures if a case like this ever actually got heard. On the one hand, Harnad’s point is good that courts would want to identify ways to find for those sympathetic scholarly authors. On another, anyone who has been following the RIAA (or remembers Eldred) knows that some of the courts also have tried to find in favor of the owners of the copyrighted works and in favor of sanctity of contract.”

Notice that in all other cases but this very special one (refereed research journal articles) both author and publisher were allied on the same side of the copyright/access divide: both wanted to protect access to their (joint) product (and revenues) from piracy by third parties.

In stark contrast, in this one anomalous case — author give-away research, written purely for maximal uptake, usage and impact, not at all for royalty revenue — the publisher and the author are on opposite sides of the copyright/access divide, and publishers would not be suing pirates, but the authors of their own works (and not “works for hire!”).

I would say that the differences from all prior cases are radical enough here to safely conclude that all prior bets are off, insofar as citing precedents and analogies are concerned.

And I would say that the de facto uncontested practices of millions of scholars and scientists annually for decades since well into both the photocopy and the email eras bear this out.

And although individual reprint/eprint request-fulfillment by authors is definitely not OA (though it is a harbinger of it), the growing clamor for OA today is surely making it all the harder for publishers now suddenly to do an abrupt about-face, endeavoring to contest individual reprint/eprint request-fulfillment by authors after all this time — and now, of all times!

RQJ: On a third hand, the institutional employers of the researchers might well try to assert WmfH or other compulsory license theories that trumped the publisher’s copyright.”

You are thinking here about what institutions (and funders) could do to force the issue insofar as OA is concerned (and I agree, they do have an exceedingly strong hand, and could and should use it if it proves necessary).

But that is not even what we are talking about here: We are just talking about the longstanding pre-OA practice of individual reprint/eprint request-fulfillment by authors, for research purposes…

RQJ: On a fourth, there’s the public interest in “the Progress of Science” and a dearth of good empirical data as to which copyright regimes actually do promote that progress.”

All worthy and worthwhile, but probably not necessary, as neither individual reprint/eprint request-fulfillment by authors nor Immediate-Deposit/Optional-Access (ID/OA) mandates are copyright matters:

RQJ: …Will it ever go to court? Maybe not. The publishers might win their particular case but lose the war by triggering a revolution.”

What is the “it” that you are wondering about? Over 90% of journals are already Green on immediate, unembargoed OA self-archiving in some form (63% for the refereed postprint, a further 32% for the unrefereed preprint).

So are you wondering whether the non-Green journals will try to sue their authors? No, they won’t. At most, some may try to send them take-down notices, which their authors will either choose to honor or ignore.

But that isn’t even what we are talking about here: We are talking about individual reprint/eprint request-fulfillment by authors, for research purposes: Wouldn’t the time for authors to worry about that have been 50 years ago, before they began doing it, rather than now, when they and their children and grand-children have already been doing it with impunity for generations?

Stevan Harnad
American Scientist Open Access Forum