Poynder on Digital Rights Management and Open Access

Stevan Harnad harnad at ecs.soton.ac.uk
Sat Apr 23 14:48:44 EST 2005


Richard Poynder has written an -- as always -- thoughtful and informative
article:

    Richard Poynder, The role of digital rights management in Open Access,
    Indicare, April 22, 2005.
    http://www.indicare.org/tiki-read_article.php?articleId=93
    http://poynder.blogspot.com/2005/04/role-of-digital-rights-management-in.html

Nevertheless, Richard's article also contains a few prominent internal
contradictions, and once these contradictions are seen and resolved,
it is Richard's thesis -- the seemingly mild thesis that Digital Rights
Management needs to be made a priority for Open Access -- that is left
contradicted. 

I will analyze these contradictions in a moment; but first, Richard's
article also contains a very important and potentially misleading error
in the form of a rather shrill exaggeration of the number of publishers
that have been inspired to back-pedal on their prior green author
self-archiving policies under the influence of the recent announcement
of the NIH 6-12-month Back Access policy: To my knowledge, that number
is exactly *one* publisher, taking one half-step backwards:

Nature Publishing group has back-pedalled from full-green [immediate
postprint self-archiving] to pale-green [immediate preprint self-archiving
plus postprint self-archiving after 6 months]. There has been no other
change in the SHERPA/Romeo policy database since the NIH announcement. The
only publishers mentioning an embargo are the four that were already
either gray (American Chemical Society, Yale U. Press, MIT Press)
or pale-green (National Research Council of Canada).

    http://romeo.eprints.org/publishers.html

This leaves the total percentage of green journals at 92%, exactly as
before, and merely shifts the pale-green/full-green boundary from 13%+79%
as before NIH, to 16%+76%. This does not seem to me like a basis for stating
that:

>   "more and more publishers are insisting that papers are only
>   self-archived on an embargoed basis, demanding delays of between
>   six and twelve months between publication and self-archiving."

But now let us turn to the basic contradiction: Richard suggests that those
OA proponents who insist that the immediate priority is to self-archive
*now* (for, at least 92% of OA's target content, of which only 15%
is being self-archived today) are wrong. Instead of giving priority to
self-archiving -- and to adopting institutional and research-funder
policies that require self-archiving -- we should give priority to
Digital Rights Management. So instead of acting on the green light we
have already from 92% of journals, the priority is instead to go back and
negotiate something like a Creative Commons License with those journals.

And this needs to be done for two reasons: (1) to protect our papers
from nonattribution, plagiarism or text-corruption (something that our
existing copyright agreements with our publishers already cover!) and
(2) to dispel the confusion about copyright and permissions that is
holding back self-archiving.

This re-ordering of priorities is being urged, moreover, in full
cognizance of the fact that publishers are highly unlikely to agree
(and, I might add, that authors who are already sluggishness about
self-archiving, fearful that it might entail some risk or burden for
them, will have their fears amply confirmed by this readjustment of
the priorities).

There you have it. I would say that the resolution of this contradiction
is quite clear: Self-archived articles published in green journals (92%)
are already protected from nonattribution, plagiarism and text-corruption
by their existing copyright agreements, and the only priority for them
is self-archiving, immediately. (The 8% minority publishing in the gray
journals can, if they like, try to negotiate a CC-like license with
their publishers, but the *priority* is the 92% majority, otherwise it
is the tail wagging the dog.) 

And the remedy for author sluggishness about self-archiving and confusion
about rights is to adopt clear institutional and funder policies on
self-archiving and to provide clear information on the fact that rights
are not at issue when supplementing access to one's own green journal
articles by self-archiving them.

What we don't seem to have quite realized yet is that the only
real obstacle to 100% Open Access is -- and always has been -- not
permissions, property, plagiarism, and all those other p-words, but
KEYSTROKES. It is keystrokes that authors are (for a panoply of reasons,
all groundless) slow to perform. So the only thing that is needed is
an institutional/funder *incentive* to perform those keystrokes (via
a suitable variant of the publish/perish requirements and rewards that
are already in play everywhere today anyway).

For 92% of OA content, the coast is already clear, and green; for the 8%
of the shoreline that is still gray, the keystrokes -- for depositing
the full-text plus the metadata (author, title, journalname, date,
author's email address, URL for the official version on the publisher's
website) into the author's institutional repository should be required
anyway (for internal record-keeping, grant-fulfillment, and performance
evaluation purposes). But the very last keystroke (the one that sets
full-text access as "institutional access" or "open access"), can be
left optional for now. For the 8% of "gray journal" papers, their metadata will
still be visible to all would-be users webwide, and their authors can
just keep doing the keystrokes that are needed to send copies by email to
all eprint-requesters (just as they mailed paper reprints in paper days)
until they one day tire of doing all those extra keystrokes and simply
hit the OA key.

Now some quote/comments on the text:

>   DRM... [Digital Rights Management] can... be used... to ensure correct
>   author attribution, to certify document integrity and provenance,
>   to prevent plagiarism, and indeed to enable creators to assert their
>   rights in ways that encourage - rather than restrict - access.

Indeed it can be -- but for the 92% of articles published in green
journals, there is no *need* for any further DRM. What is needed is
self-archiving. And what authors need in order to be encouraged to
self-archive is *less* to do, not *more* to do.

>   But if researchers don't make clear to their readers on what basis
>   a paper has been released, how will their readers know?

By noting the name of the journal in which it was published, just as they
always did, whether they accessed it on paper or on-line.

>   ...in 2002 a number of intellectual property lawyers, including
>   Lawrence Lessig (cf. sources) and James Boyle, founded
>   Creative Commons (CC).

Yes, but the CC is for a far broader constituency of creators than
just the authors of the 2.5 million annual articles published in the
planet's 24,000 peer-reviewed journals (each and every one of them an
author give-away rather than a royalty-seeking work). Nor is the wider
constituency of give-away work already protected by copyright, as these
published journal articles already are. So the broader set needs CC
protection; peer-reviewed journal articles already have it.

>   ... while 92 % of scholarly journals now allow their authors to
>   self-archive it is a far from ideal solution. As authors are not
>   permitted to use the publisher's PDF, for instance, the self-archived
>   version may be somewhat different from the publisher's version.

So what? The problem today is that 85% of the annual 2.5 million research
articles is not accessible *at all* to many of its potential users. Is
the priority to wait till publishers agree to the self-archiving of their
PDF too? The author's final, refereed, accepted draft is not enough? Let
us not keep making such sacrifices for such idealism...

On the contrary; let there be a clear difference between the author's
self-archived postprint and the publisher's official PDF. Let the
author's supplementary version point to the publisher's official PDF,
both for scholarly purposes and so that those users whose institutions
can afford access to it know where to go to get it. But OA is not about
the publisher's PDF: It is about the peer-reviewed *content*.

>   [C]onfusion and uncertainty over copyright represents one of the
>   greatest obstacles to self-archiving today, and perhaps explains
>   why still only 15 % of authors self-archive.

The suggestion to add the burden (and risk of failure) of having
to try to renegotiate DRM/CC with their publishers, over and above
the otherwise simple series of keystrokes (that authors already 
believe, wrongly, to be a lot more of a burden to perform than they
really are [http://eprints.ecs.soton.ac.uk/10688/]) is not to reduce
confusion and uncertainty but to compound it!

Besides, we have already been given the publishers' likely response:

>   "Were we presented with this [DRM] Addendum, we would decline to
>   publish the paper. I am quite sure a majority of publishers would
>   do the same" (Banks 2005).

To repeat: Ninety-two percent of journals are already green on
self-archiving; but to now to go on and ask them for still more -- to
insist on renegotiating copyright or on having the right to self-archive
the publisher's PDF -- is not only asking for more than what is necessary
for 100% OA, but for more than what is reasonable or fair to ask. Far
better to adopt institutional policies that require their authors to do
what their publishers have already given them their blessing to do.

>   The solution, suggests John Ober, director of the policy, planning and
>   outreach office of scholarly communication at the California Digital
>   Library...is for publishers to "turn their publication copyright
>   policies into the appropriate 'set' of Creative Commons elements"

Yes, one can state that as "the solution." But whereas right now the
problem (for at least 92% immediate OA) is to get authors to do the
keystrokes, this "solution" would compound that problem by first also
requiring publishers to agree to a lot more -- and a lot more that is
completely unnecessary in order to reach 100%.  And a lot more improbable
too, than just getting authors to do the keystrokes
(which merely calls for an employer/funder  policy that requires it).

>   Far from helping to facilitate self-archiving, however,
>   most subscription-based publishers today appear more intent on
>   emasculating it.

Then why encourage them by needlessly asking for more, instead of just 
going when the going is green?

>   Publishers are also insisting that authors provide a link from
>   the archived version to the official version of the article on the
>   publisher's web site, and that they include the article's unique
>   Digital Object Identifier (DOI) The aim is to drive users away from
>   the free version of the article that has been self-archived, to the
>   for-fee version on the publisher's web site.

There is nothing wrong with directing (not "driving") those who can afford it to
the publisher's official PDF! The author's postprint is for those who
cannot afford the PDF. And that is what OA is about: the content, not the form.

>   The next stage in this strategy may be for publishers to change
>   direction and, instead of prohibiting authors to self-archive
>   the publisher's PDF, to actively encourage it. This would give
>   publishers an opportunity to reassert their ownership of the article,
>   to reinforce their brand, and to charge authors in the process. But
>   the real attraction is perhaps that the PDF file format is ideally
>   suited to the use of second-layer DRM (technical measures) enabling
>   publisher-determined usage rights to be incorporated into the
>   articles.

To repeat. These alarums are all misdirected. The target isn't the
publisher's PDF (and let that be booby-trapped in any way its creator
may see fit: who cares?). The target is the content of the author's
peer-reviewed final draft (the postprint). And the problem is that 85%
of that OA content is not yet being self-archived. The priority, then,
is to provide that 85%, as soon as possible, not to continue worrying
ineffectually about non-issues like PDF or DRM!

>   "Were we presented with this [DRM] Addendum, we would decline to
>   publish the paper. I am quite sure a majority of publishers would
>   do the same" (Banks 2005).

QED

>   the NIH's decision not to mandate (but merely encourage) its
>   researchers to self-archive appears to have been partly influenced by
>   uncertainties over copyright. This suggests that until the copyright
>   situation is clarified uncertainty over rights -- and how they are
>   managed -- will remain a serious obstacle to OA.

The only serious obstacle to OA today is the absence of institutional
policies requiring the self-archiving of institutions' own research
article output. Berlin 3 has now recommended such a policy:

    http://www.eprints.org/berlin3/outcomes.html 

And institutions are at last committing themselves to going ahead
and adopting it:

    http://www.eprints.org/signup/fulllist.php

Stevan Harnad

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