Poynder on Digital Rights Management and Open Access

Stevan Harnad harnad at ecs.soton.ac.uk
Sun Apr 24 12:33:11 EST 2005

Richard Poynder wrote:

>   I think the key question is the extent to which uncertainty about
>   copyright is acting as a deterrent to self-archiving. 
On this point we agree: Copyright worries are *one* among the 32 groundless
worries that are acting as a deterrent to self-archiving:


>   The first issue confronting the OA movement is that there is currently
>   no definitive answer as to whether researchers can legally self-archive
>   without publisher permission. 

There is no definitive legal answer because there has not been a single
legal challenge in over 15 years, with hundreds of thousands of articles
prominently already self-archived (e.g., in the Physics arXiv since 1991,
in computer science web and ftp sites from even earlier). On the contrary,
the response in physics has been that the physics publishers were among
the earliest to become green (i.e., to give self-archiving their official
permission). Since then, 92% of journals have become green.

So what Richard is here calling "the first issue confronting the OA
movement" -- "that there is no definitive answer as to whether researchers
can legally self-archive without publisher permission" -- pertains to 8%
of the annual 2.5 million articles published.

Is it not the tail (8%) wagging the dog (92%) to conclude from this
that Digital Rights Management (DRM) is the "first issue confronting the
OA movement"? and that the remedy is for all authors to try to renegotiate
copyright with their publishers?

Is it not more straightforward to conclude that the 92% should go ahead
and self-archive, and that 8% should instead negotiate, if they wish
(but first at least deposit their metadata and full-text into their
institutional repository with access set at institution-internal)?

Is it not merely fanning fears (without foundation) to insist that
the re-negotiating DRM is necessary because "more and more" of the
92% green are back-sliding, when to date only one green publisher
(Nature) has back-slid, and only from full-green (immediate postscript
self-archiving) to pale-green (immediate preprint self-archiving plus
postprint self-archiving 6 months after publication)?


>   Of course, most publishers do not object to self-archiving. The second
>   issue then is that since evidence suggests that -- regardless of its
>   legality, regardless of the existence of publisher permission --
>   many researchers appear to believe that copyright *does* prohibit
>   them from self-archiving how can the movement resolve the matter?

Very simply. And the researchers themselves have told us exactly how:

Alma Swan's two international, multidisciplinary surveys have reported
that 79% of authors reply that they do *not* self-archive, and will not
self-archive, until and unless their employers or funders *require* them
to do so; but if and when they do require them to do so, they reply that
they *will* self-archive, and will self-archive *willingly*. (Only 4%
replied that they would not self-archive even if required; I would say
a 96% resolution counts as a solution, and is vastly preferable to the
tail wagging -- or holding back -- the dog!)


>   Given that publishers appear unlikely to abandon their proprietary
>   habits voluntarily Stevan justifiably draws attention to my
>   failure to suggest more concrete ways in which those who support
>   OA can achieve clarity on this matter by assisting researchers
>   to obtain more liberal licences. 

That isn't quite what I said! I said that:

     (1) it wasn't necessary (because the 92% of journals that are
     green already provide copyright protection);

     (2) the 85% of authors today that already find self-archiving too
     burdensome (until/unless required by their employers and funders)
     are not likely to find it less burdensome if now they are expected
     to first successfully re-negotiate DRM with their publishers, and
     even to put the acceptance of their papers at (needless) risk by
     asking their journals for more than the self-archiving permission
     they already have from 92% of them; and

     (3) the publishers of the 92% of journals that have already given
     self-archiving their green light are unlikely to take kindly to
     being asked (needlessly) for still more, when they have already
     agreed to all that is needed (and the only problem is that authors
     don't do it because their employers/funders don't require them to!).

>   Let me suggest one [way to "resolve the matter"]: research
>   funders could not *only* mandate that researchers self-archive,
>   but *in addition* mandate them to retain sufficient rights to
>   ensure that they are free to self-archive their papers, and to
>   be able to do so immediately on publication. 

This is breaking down (92%) open doors: It is enough that funders (and
employers) mandate that the research they fund must be made open access
by their fundees/employees. They already have their publisher's blessing
to do this for 92% of their articles.

There is *perhaps* no harm in mandating that for the 8% of journals that
are still gray, researchers must try to re-negotiate their copyright
agreement with those publishers, but right now, there are as yet few
institutional mandates in place at all. Apart from second-guessing what will
get sluggish authors to self-archive, we also have to second-guess what will
get sluggish institutions and funders to mandate: Are institutions/funders
more likely to wake up and 

    (i) mandate self-archiving alone (with institutional-access plus
    eprint emailing as the option for the 8% of articles in non-green
    journals for the time being)?

    (ii) mandate self-archiving for the 92% green plus DRM re-negotiation
    for the 8% gray (but at the risk of some opposition from [already
    sluggish] researchers, who may not be willing to do more than 
    self-archive, if required)?


    (iii) mandate self-archiving *and* DRM re-negotiation with *all*
    journals, whether green or gray -- thereby inducing almost certain
    objections from researchers who do not wish to put the acceptance
    of their articles by the journal of their choice needlessly at
    risk and do not want to be constrained in which journal they choose
    publish in?

We are right now at 15% OA self-archiving. Policy (i) would immediately
fast-forward us to at least 92% OA, without any further unnecessary
complications, deterrents or uncertainty. (ii) is a possible (though
not necessary) variant policy. I think (iii) would not only be unnecessary
but another big gratuitous retardant on something that should have happened

>   It is not clear to me why they cannot (as specified in the SPARC
>   Author's Addendum http://www.arl.org/sparc/author/addendum.html)
>   also insist that publishers provide a copy of the published PDF
>   (without any DRM security measures incorporated). This might even
>   help to cut down the number of keystrokes that researchers have to
>   make in order to self-archive.

Insisting on the publisher's PDF is not only unnecessary and a further
gratuitous retardant, but it will not cut down on the (in any case small)
number of keystrokes one bit: 

    Carr, L. and Harnad, S. (2005) Keystroke Economy: A Study of the
    Time and Effort Involved in Self-Archiving.

It averages 6-10 minutes to deposit the metadata (authorname, title,
journalname, date, etc.) plus one keystroke to attach or import the
full-text -- irrespective of whether it is the author's postprint or
the publisher's PDF. (Second and later papers are even faster.)

My own guess is that the lion's share of the hesitation and speculation
about self-archiving comes from never having tried it, but merely imagined
it. This is why DemoPrints was set up, as an archive for anyone to try it,
so they will know what they are talking about! (Might be a good idea for
you to try it too, Richard! You register first, as with all archives,
and then you can do the keystrokes: Please let me know the timing!)


>   Stevan is clearly right to say that funders could just tell
>   researchers that they are entitled to self-archive, but as we saw
>   with the NIH plan, clarity on the current situation vis-a-vis rights
>   does not exist even amongst funders. 

Two unclarities don't make a clarity! Yes, NIH was unclear on a lot of
things, including rights, but they made the unwise and arbitrary decision
to require (then only request) self-archiving in a central 3rd-party
archive, PubMed Central (not the author's, nor the author's employer's,
but a 3rd party's -- the funder's). This invited 3rd-party rights issues
-- bogus, if they had been properly thought through, but as it happens,
not properly thought through, just sufficient to be used as a pretext
for downgrading the requirement to a request, and for interposing first
a 6-month, then a 12-month embargo.

The right way to have gone about it would have been to require *immediate*
self-archiving (upon acceptance for publication) in the author's own
institutional repository, as a precondition for NIH grant-fulfilment,
with a strong encouragement to make the self-archived full text OA.
(NIH could then have harvested the metadata and full-text for whatever
central enhancement it may have wished to do, to make it available also
through PubMed Central. Embargoes would not then block immediate access to
the author's institutional version; there would simply be a delay to the
enhanced PubMed Central version. Nor would the 8% tail have been able to
wag the 92% dog.)

This is the strategic policy error that the Berlin 3 policy corrects,
and the unclarity that it dispels:


>   Moreover, where publishers give permission to self-archive, but only
>   after an embargo, I am not clear how the current status quo can ever
>   remove researchers' reluctance to ignore such embargoes without a
>   court ruling on the legalities of self-archiving. For these reasons
>   I suggested that the OA movement needs to address rights issues if
>   it wants to move forward.

A. There is no embargo for 92% of papers. (Richard has multiplied the
number of embargoes in his own mind, but they are not there in the actual
publisher policy data.)

B. For the 8% of papers in journals that are not yet green, the only thing
researchers need to not-ignore is the requirement to perform the keystrokes
for depositing their metadata and full-texts in their own institutional
repositories. Whether they choose to make the full-texts of that 8% of papers
OA, or they choose to try to re-negotiate DRM for them with their publishers, or
they choose to keep doing the keystrokes to email the eprint to all their
eprint-requesters (who will have seen the metadata, which are always OA), is
left up to the authors.

C. If the physicists since 1991 -- or the computer scientists since
even earlier, in the late 1980's -- had been foolish enough to sit on
their hands waiting for a "court ruling" instead of simply going ahead
and self-archiving their preprints and postprints, hundreds of thousands
of papers would have needlessly lost 15 years worth research impact and
progress today -- and we would be even worse off than we are today!


>   It is worth noting that three of the recommendations
>   made by the much-applauded UK Select Committee Report
    addressed the issue of rights. 

The US Select Committee report is much-applauded for its wise, simple,
correct, and immediately implementable recommendation to mandate immediate
institutional self-archiving (and encourage/support OA journal publishing
where possible):


It was not much-applauded for all the needless and distracting excess
verbiage in which that simple, straight-forward recommendation --
virtually identical to the Berlin 3 recommendation -- was wrapped:


>   Most notably one of those recommendations stated: "The issue of
>   copyright is crucial to the success of self-archiving. We recommend
>   that, as part of its strategy for the implementation of institutional
>   repositories, Government ascertain what impact a UK-based policy
>   of author copyright retention would have on UK authors. Providing
>   that it can be established that such a policy would not have a
>   disproportionately negative impact, Research Councils and other
>   Government funders should mandate their funded researchers to retain
>   the copyright on their research articles, licensing it to publishers
>   for the purposes of publication. The Government would also need
>   to be active in raising the issue of copyright at an international
>   level. (Paragraph 126)"

This is actually a very reasonable recommendation, with exactly the
right priorities. Notice that it does not recommend that this further
research on the potential impact of a potential copyright-retention
policy be performed *before* or *instead of* or as a *precondition for*
the recommended self-archiving mandate. It quite sensibly recommends
this bit of research to be performed in the background, in parallel. Nor
does it prejudge the outcome; it merely says that if the outcome does
not prove to be too negative, a copy-right retention policy could then
be mandated too. Who can disagree with that? 

But meanwhile, the priority remains an immediate self-archiving mandate.

>   This, along with all the other Select Committee recommendations,
>   was of course rejected by the UK Government. It may be,
>   however, that the forthcoming Research Councils UK policy
>   (http://www.rcuk.ac.uk/whatsnew.asp) will pick up this recommendation
>   and act on it in some way. After all, what the Creative Commons has
>   taught us is that copyright does not have to be a winner-takes-all
>   process. All that is required is that researchers retain *sufficient
>   rights to self-archive*, not *all rights*.

As I have been at some pains here to show, copyright retention is 
irrelevant and unnecessary for 92% of OA's target content today. Immediate
self-archiving is the immediate, high-priority solution there.

It would be just fine if RCUK followed the Select Committee's recommendation
to mandate immediate institutional self-archiving and also recommended
doing further research on what would be the impact of mandating
copyright-retention as well.

>   I would add that my intention in the article was not to suggest
>   that researchers stop self-archiving in order first to focus their
>   attentions on ways they can avoid plagiarism, or text-corruption
>   etc. in an OA environment; nor was it to recommend that resolving
>   rights issues be given priority over self-archiving. My point was
>   that since copyright appears to be acting as a significant deterrent
>   to self-archiving the OA movement is more likely to achieve its
>   objectives if it addresses the issue of rights, rather than insisting
>   that there is no issue.

The issue now is priority, not whether or not rights are relevant in any way to
OA. Richard, I can assure you that if the reality had been the other way round --
with only 8% of journals giving their green light to self-archiving -- I too would
would give copyright-retention a higher priority. But that just isn't the reality!

The reality is that 92% of journals have given self-archiving their green
light, yet 85% of authors are still just parked and not moving. Prodding
them needlessly and irrelevantly to move on retaining copyright when
they are not even moving on self-archiving just seems to be inviting
two forms of sluggishness in place of one.

I know you weren't recommending that the 15% who *are* self-archiving should stop
and renegotiate DRM instead! But the 15% self-archivers are not the problem: the
85% non-self-archivers are. And what is needed to set them in motion is an
institutional keystroke mandate, not yet another thing they can stall on
(and this time a 92% unnecessary thing)!

Stevan Harnad

    Richard Poynder www.richardpoynder.com

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